ED 067 765

AUTHORTITLEINSTITUTION

REPORT NOPUB DATENOTEAVAILABLE FROM

DOCUMENT RESUME

EA 004 620

Vaughan, Jeannette G.The Teacher's Day in Court: Review of 1971.National Education Association, Washington, D.C.Research Div.NEA-RR-72-R-672131p.Publications Sales Section, National EducationAssociation, 1201 Sixteenth Street, N.W., Washington,D.C. 20036 (Stock No..435-25502, $3.00, QuantityDiscounts)

EDRS PRICE MF-$0.65 HC Not Available from EDRS.DESCRIPTORS Civil Rights; *Collective Negotiation; Contracts;

*Court Cases; Due Process; Leave of Absence; PublicSchools; School Integration; Teacher Certification;*Teacher Employment; *Teachers; Teacher Salaries;Teacher Strikes; *Tenure

IDENTIFIERS Tort Liability

ABSTRACTThis report contains digests of 179 court decisions

covering legal issues of particular importance to teachers. The casedigests are arranged under (1) certification and eligibility, (2)

salaries, (3) contracts, (4) tenure, (5) school desegregation, (6)

civil rights, (7) teacher/school board negotiation, (8) leaves ofabsence, (9) liability for pupil injury, and (10) miscellaneous.Cases relating to teacher tenure are most numerous, with casesrelating to professional negotiation ranked second. (Author/JF)

U.S. DEPARTMENT DF HEALTH,EDUCATION & WELFAREOFFICE DF EDUCATION

THIS DOCUMENT HAS BEEN REPRO-DUCED EXACTLY AS RECEIVED FROMTHE PERSON OR ORGANIZATION ORIG-INATING IT. POINTS OF VIEW OR OPINIONS STATED DO NOT NECESSARILYREPRESENT OFFICIAL OFFICE OF EDU-CATION POSITION OR POLICY

RESEARCH REPORT 1972-R6

The Teacher's Day in Court:Review of 1971

RESEARCH DIVISION - NATIONAL EDUCATION ASSOCIATION

NATIONAL EDUCATION ASSOCIATION

CATI- IARINE BARRETT, PresidentSAM M. LAMBERT, Executive Secretary

RESEARCH DIVISION

GLEN ROBINSON, DirectorW. JACK TENNANT, Associate DirectorSIMEON P. TAYLOR III, Assistant DirectorWILLIAM S. GRAYBEAL, Assilvtant DirectorALTON B. SHE RIDANAssistant DirectorFRIEDA S. SHAPIRO, Assistant DirectorJEAN M. FLANIGAN, Assistant DirectorBERNARD R. BARTHOLOMEW Assistant DirectorGERTRUDE N. STIEBER, Senior Professional AssoDONALD P. WALKER, Professional AssociateRICHARD E. SCOTT, Chief StatisticianVALDEANE RICE, Administrative AssociateJOSEPH A. FALZON, Senior Staff AssociateELIZABETH C. MOFFATT, Senior Staff AssociateMARSHA A. REAM, Senior Staff Associate

GLADIES S. BARKER, Staff AssociateJEAN L. PROETSCH, Staff Associate

ARTHURYNE J. TAYLOR, Staff AssociatePETER D. VEILLETTE, Staff Associate

GAYE B. BECKER, Staff AssociateDOROTHY E. BURKE, Contract Analyst

KAREN S. SHIPPER, Contract AnalystRICHARD COVINGTON, Contract Analyst

date THOMAS M. SAUCEDO, Research AnalystGRACE BRUBAKER, Chief, Information

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BEATRICE C. LEE, Publications Editor

Research Report 1972-R6: THE TEACHER'S DAY IN COURT: REVIEW OF 1971

Project Director: FRIEDA S. SHAPIRO, Assistant Director

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Copyright © 1972 by theNational Education Association

All Rights Reserved

CONTENTS

Foreword 4

Introduction 5

School Desegregation 5Use of Tests 7

Tenure and Due Process 7

First Amendment Issues 9Othec Constitutional Issues 10Professional Negotiation Issues 10

Certification and Eligibility 12

Salaries 19

Contracts 23

Tenure 29

Tenure Teachers 29Nontenure Teachers 55

School Desegregation 82

Civil Rights 92

Teacher/School Board Negotiation 98

Leaves or Absence 112

Liability for Student Injury 117

Miscellaneous 120

Index to Cases 127

I

FOREWORD

THE COURTS have been and continue to be the forum in which teachers seekvindication of their rights. As times change, so do the legal issues concernedwith school policies and practices that affect teachers. Thus, recent court caseshave posed questions of constitutional dimensions relative to civil and politicalrights of teachers, academic freedom, due process for nontenure teachers, ma-ternity leaves, and the use of tests in hiring, retention, and promotion of teach-ing staff. What the courts have decided on these questions as well as others isof ,importance to the entire teaching profession, for the rulings have an impacton the rights and responsibilities of teachers that extends beyond the immediate parties to an action.

This report contains the digests of decisions of state and federal courtspublished during the 1971 calendar year where teachers and other certificatedschool personnel were plaintiffs or defendants.

The report was prepared by Jeanette G. Vaughan, formerly with the Re-search Division as a Senior Staff Associate. The study was directed by Frieda S.Shapiro, Assistant Director.

Glen RobinsonDirector, Research Division

INTRODUCTION

THIS REPORT contains digests of 179 court deci-sions with legal issues of particular importance toteachers. The material in this compilation coniesfrom judicial decisions published during the 1971calendar year in the National Reporter System.While most of the decisions summarized here wererendered in 1971, cases decided earlier, but not inprint until sometime in 1971, are also included.With some exceptions, litigants in these cases,whether plaintiffs or defendants, were teachers orother professional school personnel in the publicelementary and secondary schools and publiclyfinanced institutions of higher learning. The num-ber of reported decisions in 1971 exceeded those re-ported in 1970 by 36, with this increase mainly theresult of lawsuits by nontenure teachers to obtainprocedural due process rights.

The 179 decisions originated in 39 states. Allbut four are of a civil nature. The exceptions aretwo decisions from New Jersey and one from NewYork where teachers were cited for criminal con-tempt of court for violating injunctions againststrikes. The other noncivil case involved facultymembers at the State University of New York atBuffalo who succeeded in obtaining a reversal of ajudgment of criminal contempt of court for vio-lating an injunction against occupation of campusbuildings. In all, 119 decisions are products of statecourts: 28 from the highest tribunal of the statewhere the action was initiated, 60 from inter-mediate appellate courts, and 31 from trial courtswhose decisions are systematically published in thereference source used in the preparation of thisreport. The federal courts were represented by 60decisions: 22 decisions from federal circuit courtsof appeal and 37 decisions from federal districtcourts. The Supreme Court of the United Statesrendered one decision concerning teachers in 1971.This involved the Florida loyalty oath required ofteachers.

As in other years, New York courts producedthe most decisions. This year there were 48 fromNew York, followed by California with 11 andFlorida with 10.

The case digests are arranged under the follow-ing 10 topic headings: (a) certification and eligi-bility, (b) salaries, (c) contracts, (d) tenure, (e)

5

school desegregation, (f) civil rights, (g) teacher/school board negotiation, (h) leaves of absence, (i)liability for pupil injury, and (j) miscellaneous.When there is more than one case from a stateunder the same topic, the cases are listed alpha-betically by title. Table 1 classifies the 179 deci-sions by state and major issue raised. Cases withmore than one issue are cross-referenced.

As in previous years, issues relating to teachertenure were again the most numerous with arecord-breaking number of 81 cases appearing inthis category in 1971. Included in this broad cate-gory arc cases raising issues of due process rightsfor teachers without tenure status. Because of thelarge number of these cases that involve either pro-bationary teachers in tenure states or teachers instates without tenure protection, the topic hasbeen subdivided into two sections. The first sectioncontains those cases involving tenure employeesand those cases where the question was raised as towhether the employee did or did not have tenure.The second section contains the decisions con-cerning the nontenure teacher.

Professional negotiation again ranked second,with 26 cases this year. The 14 cases in the miscel-laneous section include loyalty, retirement, dualoffice holding by teachers, and challenges to lawsor policies requiring teachers to live in the districtthat employs them.

The summary that follows describes some ofthe major issues and significant cases presented inthis report.

School Desegregation

In 1971, as in past years, school desegregationcases initiated on behalf of black students dealtwith issues relative to faculty desegregation. Sinceteachers themselves were not litigants in thesecases, they are not reported in this publication.

This report includes those cases involving schooldesegregation where teachers were concerned di-rectly as litigants. Among these, racial discrimi-nation in the re-employment, retention, promo-tion, and hiring practices were issues raised byblack teachers and black principals. In Lee v.Macon County Board of Education, a case where

6

TABLE 1. MAJOR ISSUES IN CASES INVOLVING TEACHERS IN 1971

Certification School Teacher/ LiabilityState and Con- desegra Civil school board Leaves of for pupil Miscel- Total

eligibility Salaries tracts Tenure° gation rights negotiation absence injury laneous cases

11 121 2 3 4 5 6 7 8 9 10

Alabama 1 4 1

Arizona 1

Arkansas 1 3 2 1

California 1 1 5 1

Colorado 3Connecticut . 1

Delaware 1

Florida 7 1

Georgia 1 1 1 1 1

Idaho 1

Illinois 1 4Indiana 1 1

Iowa 1

Kansas .. .. 1

Kentucky 1 2

Louisiana 3 1 1 1

Maine 2Maryland 1 1

Massachusetts 1 3 1

Michigan 5Minnesota 1 1

Mississippi 4 1

Missouri 1 1 1

Nebraska 1

New Hampshire 3Newjersey 1 2New Mexico 4

New York 8 4 12 1 16 3 1

Ohio 3 1

Oregon 1

Pennsylvania 2Rhode Island 1 1

Tennessee 3

Texas 1 1

Vermont 1

Virginia 2 I

Washington 2Wisconsin 4 I

Wyoming 1

Total 10 7 8 81 13 9 26 6 5

6

7

3b II3

I

1

2c 105

1

5

2

1

1

3

id7

2

2

56

2

53I

le 4If 4

4

3g 484I

2

2

If 4

I' 3

1

3

2

5I

14 179

°Includes tenure-type continuing contracts and eases involving the rights of nontenure teachers.bTwo cases involve loyalty oaths and the third concerns a teacher's federal income tax return.'One case contests a loyalty oath and the other the use of an examination for teachers.dSuit concerning payment of accrued unused sick leave as a retirement benefit.'Involves a board policy requiring residence in the school district of employment.'Issue is the right of teachers to hold public office concurrently with school employment.gOne case involves a reduction in force, the second retirement, and the third is a criminal action against faculty members.

black principals were demoted as a result ofschool closings in the process of converting from adual to a unitary school system, a federal districtcourt ordered that the demoted black principalswho had chosen to remain in the school system beoffered the first principalship vacancies that arose;further, that they be paid as a salary supplementthe difference between their current salaries andthe salaries they would have received as principalsuntil such time as they were offered a promotionto the position of principal. In another case, theU.S. Eighth Circuit Court of Appeals found that anArkansas school system had unlawfully dis-criminated against four black teachers who werenot rehired after the schools were desegregated andordered the board to notify these teachers ofpresent and future vacancies within the system andoffer the positions to them without comparingthem with other applicants.

The use of the Graduate Record Examinationand the National Teacher Examinations in employ-ment or retention of teachers was challenged asracially discriminatory in two cases. In the firstcase, the National Education Association and theMississippi Teachers Association joined nine blackteachers who were refused re-employment in theStarkville Municipal Separate School District, in asuit to :enjoin a school-board policy requiring in-service teachers and applicants for teaching posi-tions to achieve a minimum score on the GraduateRecord Examination or a master's degree as a pre-condition for retention or employment in theschool district. The policy was adopted at a timewhen the district was under pressure to desegregateits schools. The U.S. District Court of the NorthernDistrict of Mississippi declared that this boardpolicy was unconstitutional in that the cut-offscores of the examination established a racial classi-fication. The court ruled further that the use of theGraduate Record Examination violated the dueprocess and equal protection clauses of the Four-teenth Amendment for the reason that the exami-nation was not job-related to the extent that itdetermined teacher competency and because, asused, the examination disqualified a dispropor-tionate number of black teachers and applicants.Accordingly, the school district was enjoined fromutilizing the examination in the selection of in-service teachers and the hiring of new applicantsand those plaintiff-teachers who were not rehiredas a result of the policy were entitled to damagesand re-employment. This decision was upheld inJune 1972 by the U.S. Fifth Circuit Court ofAppeals.

In Baker v. Columbus Municipal SeparateSchool District, a case with plaintiffs and issues

7

parallel to those in the Starkville case, the samefederal district court held that a school board re-quirement that all first-year teachers and applicantsfor teaching positions attain a 1000 minimumcomposite score on the National Teacher Exami-nations as a prerequisite to employment violatedthe Fourteenth Amendment.

Use of Tests

Besides the challenges to the use of the Gradu-ate Record Examination and the National TeacherExaminations for retention and initial hiring in thecontext of school desegregation, teachers andteacher groups in other lawsuits contested the useof examinations for purposes or staff appoint-ments, promotions, or salary. A Florida state courtruled that since a 1967 state law deleted the re-quirement that teachers achieve a minimum scoreon the National Teacher Examinations for the pur-pos2 of certification and appointment on con-tinuing (tenure) contracts, a local school boardcould not impose this requirement on nontenureteachers as precondition to re-appointment.

In Chance v. Board of Examiners and Board ofEducation of the City of New York, two teachers,one black and one Puerto Rican, brought a classsuit charging that the competitive examinations forlicensing and appointment to supervisory positions,such as principal and assistant principal, discrimi-nated against them. A federal district court con-cluded on the record before it that the examina-tions have the effect of discriminating againstqualified black and Puerto Rican applicants andthat the examinations could not be validated asjob-related. Therefore, the court issued a pre-liminary injunction against conducting furthercompetitive tests of the type here challenged andfrom promulgating eligibility lists based on them,pending a trial on the merits. This decision wasupheld by the U.S. Court of Appeals for theSecond Circuit.

Tenure and Due Process Issues

The 1971 decisions grouped under the tenurecategory cover a variety of legal issues of both asubstantive and a procedural nature. For example,courts were called upon to construe state tenurelaws, to determine if there was statutory cause forand sufficient evidence to support demotion or dis-missal of tenure teachers or if, as some teacherscontended, dismissals were because of their civilrights activities or the exercise of First Amendmentrights of speech, petition, and association, or todecide if procedural irregularities resulted in unfairtreatment of teachers.

7

8

An outstanding and a much litigated issue in1971 in the federal courts concerned nontenureteachers at the elementary, secondary, and highereducation levels. The issue was whether, in theabsence of statute, nontenure teachers are constitu-tionally entitled to procedural due process rightsupon nonrenewal of their contracts. As the deci-sions summarized in this report show, the federalcourts were divided on this question. The U.S.Sixth Circuit Court of Appeals in Orr v. Trinterheld that, absent statutory rights, a nontenure teach-er need not be afforded procedural due processupon nonretention. On the other hand, the U.S.Seventh Circuit Court of Appeals affirmed a Wis-consin federal district court decision in Roth v.Board of Regents which held that under the dueprocess clause of the Fourteenth Amendment a non-tenure professor whose contract was not renewed(after his first year of probation) was entitled to sub-stantive protection against arbitrary nonretention.The lower court had concluded that "the decisionnot to retain a professor employed in a stateuniversity may not rest on a basis wholly un-supported in fact, or on a basis wholly withoutreason." In addition, the nontenure professor wasentitled to procedural due process safeguards, theminimal requirements of which included a state-ment of reasons for considering the nonrenewaland a hearing. In affirming this decision, theSeventh Circuit Court concluded that the districtcourt properly considered the adverse effect thatnonretention is likely to have on the career interestof the pro fessor. Another reason for upholding theRoth principles, the appellate court said, was toprevent the stifling of First Amendment freedoms.

Under reasoning that differed from Roth, theU.S. Fifth Circuit Court of Appeals ruled inFerguson v. Thomas (430 F.2d 852 (1970)), that anontenure teacher who has an "expectancy of re-employment" and whose contract is not renewed isentitled to notice of the cause and to a meaningfulopportunity to be heard in his own defense. Infurther amplifying due process rights of nontenureteachers, the Fifth Circuit Court in the Texas caseof Sindermann v. Perry (430 F.2d 969 (1970)),held that a nontenured teacher who lacks an ex-pectancy of re-emplo yment would still be entitledto a hearing but under different procedures. Insuch a situation, the teacher must bear the burdenof initiating the proceedings for review of the re-fusal of the employing board to rehire him and theburden of proving that wrong had been done. InSizzdermann, the Fifth Circuit Court ruled furtherthat the district court should not have dismissedthe action of the Texas junior college teacher with-out hearing his claim that his nonretention un-

constitutionally infringed on his free speech right.The teacher had alleged in his complaint that hewas nonrenewed because of his testimony beforelegislative committees and his other public state-ments critical of the Board of Regents' policies.

In January 1972, the Supreme Court of theUnited States heard appeals brought by the col-leges from the Roth and Sindermann decisions. Insimultaneous decisions handed down on June 29,1972, the Supreme Court held 5 to 3 in the Rothcase that a nontenure teacher employed under aone-year contract has no constitutional right to astatement of reasons and a hearing on the stateinstitution's decision not to rehire him unless hecan show that the nonrenewal deprived him of aninterest in "liberty" or that he had a "property"interest in continued employment, despite the lackof tenure or formal contract. The Supreme Courtsaid that the interest of liberty would be impli-cated and the requirements of due process wouldapply where the state, in declining to rehire ateacher, makes any charges against him "that mightseriously damage his standing and associations inthe community" or imposes on him "a stigma orother disability that forecloses his freedom to takeadvantage of other employment opportunities."Further, procedural due process safeguards wouldbe applicable where the teacher's property interestin employment supports a legitimate claim for en-titlement to re-employment. In Roth, the SupremeCourt concluded that since the teacher had notshown that he was deprived of liberty or propertyprotected by the Fourteenth Amendment, sum-mary judgment in his favor on the issue of pro-cedural due process should not have been granted.Accordingly, the decision of the U.S. Court ofAppeals for the Seventh Circuit was reversed. (40U.S. Law Week 5079)

In Sindermann, the Supreme court ruled 5 to 3that the lack of a formal contractual or tenureright to re-employment, taken alone, did not barthe teacher's claim that nonrenewal of his contractviolated his free speech right under the First andFourteenth Amendments. On this issue, theSupreme Court agreed with the Fifth Circuit thatthe district court erred in not hearing this claim.The Supreme Court disagreed with the FifthCircuit Court insofar as it held that mere subjective"expectancy" of tenure is protected by proceduraldue process. However, the Supreme Court heldthat the teacher's allegation that the college had ade facto tenure policy, arising from rules and under-standings officially promulgated and fostered, en-titled the teacher to prove the legitimacy of hisclaim to job tenure and upon such proof, thecollege was obligated to afford him a requested

hearing where he could be given grounds for hisnonretention and challenge their sufficiency.Therefore, the judgment of the Fifth Circuit Courtremanding the case to the district court was af-firmed.

First Amendment Issues

A claim often made by teachers whose em-ployment is terminated is that in reality the schoolboard action is in retaliation for the exercise ofrights of free speech, petition, and association pro-tected by the First Amendment. Depending uponthe facts, judicial redress against infringement ofFirst Amendment rights was obtained by someteachers but not by others as the followingexamples illustrate: Where there was. evidence thata New Hampshire nontenure teacher was not re-employed on account of his activities as chiefnegotiator for his local teachers association and onthe basis of uninvestigated student complaints andunverified rumors without regard to their truth orfalseness, a federal district court held that theteacher's dismissal violated the First and Four-teenth Amendments. In view of this, the teacherwas entitled to immediate reinstatement anddamages for lost salary, and to have any notationof nonrenewal of his contract expunged from hisrecord. In another case, the U.S. Fifth CircuitCourt of Appeals held that employment at a publiccollege cannot be denied a teacher in retaliation forthe assertion of his First Amendment right of freespeech. Prior to employment at the college, theteacher had testified as an expert witness for thedefense on the literary merits of a film involved ina criminal obscenity prosecution, a factor allegedlycausing the cancellation of his employment con-tract. The teacher was ordered reinstated pending atrial on the merits. On the other hand, the U.S.Eighth Circuit Court of Appeals upheld findingsof a federal district court in Missouri that thetermination of employment of a probationaryteacher was the result of good faith discretion ofthe school authorities and was not, as the teachercontended, for a constitutionally impermissiblereasonthe writing of a letter to a state legislator.The letter in question criticized the state depart-ment of education for failing to allot funds for asummer program to a special education project inwhich the teacher worked and asked the legislatorfor assistance in obtaining funds. It was written onofficial school-board stationery and created theimpression that the teacher was speaking for theboard which she had no authority to do. In thecircumstances, the appellate court held that theletter was not protected speech under the FirstAmendment.

Q

Academic freedom was an issue in the dis-charge of unbecoming conduct of a Massachusettsteacher. The discharge stemmed from his use of ataboo word during an 11th -grade class discussionof a novel in which the teacher introduced thesubject of society and its ways as illustrated bytaboo words. The U.S. Court of Appeals for theFirst Circuit affirmed the decision of the districtcourt that the teacher be reinstated but it rejectedthe guidelines the district court had laid down forpermissible teaching methods, saying that therewas "no substitute for a case-by-case inquiry intowhether legitimate interests of the authorities aredemonstrably sufficient to circumscribe a teacher'sspeech."

In other issues concerned with First Amend-ment rights of teachers, a federal district courtruled that the refusal of an elementary-school.teacher to recite or lead the class in the Pledge ofAllegiance required as part of the morning classexercise was protected expression under the FirstAmendment which could not be forbidden at therisk of loss of employment. The court ordered theteacher reinstated pending final disposition of thecivil rights action the teacher had instituted. Inanother action a science teacher and his high-school son successfully challenged a recently en-acted Maryland statute requiring all students andteachers, except those objecting for religious rea-sons, to stand, salute the Flag and recite in unisonthe Pledge of Allegiance. Failure to comply waspunishable. The teacher objected to the Flag saluterequirement because he could not "in good con-science" force patriotism upon his classes and be-cause he believed that being forced to salute theFlag eliminated his right to freely express his ownloyalty to the United States. Maryland's highestcourt held that the compulsory Flag salute law andits punishment provisions were unconstitutional asan abridgement of free speech under the FirstAmendment.

A question before the Supreme Court of theUnited States in 1971 was the constitutionality ofthe Florida loyalty oath statute. In a suit broughtby a teacher, the federal district court upheld twoportions of the oath, but declared unconstitutionalthe portions relating to membership and the givingof aid to the Communist party and membership inorganizations believing in the overthrow of thestate or federal governments. The Supreme Courtstruck down this portion of the oath. The onlyportion held constitutional by the Supreme Courtwas the section requiring applicants to pledge tosupport the state and federal constitutions.

Of significance also is an opinion rendered in1969 but not officially published until 1 971 in

9

10

which a federal district court in Texas ruled that aschool-board regulation which completely banned-all political activities by teachers except voting wasinconsistent with the First Amendment guaran-tees of freedom of speech, press, petition, andassembly. The court decided that the action of theschool board in refusing to renew the contract of ateacher, due at least in part to his political activi-ties in violation of the regulation, was an infringe-ment upon the teacher's constitutionally guar-anteed rights not to be punished by the state orsuffer retaliation at its hand because of his per-sistence in the exercise of his First Amendmentrights,

Other Constitutional Issues

Constitutional rights of teachers in contextsbesides those already mentioned above were inissue in other cases decided in 1971. Among thesewere cases challenging residency rules and materni-ty leave policies. The New Hampshire SupremeCourt declared invalid a city ordinance which re-quired teachers and classified city employees tolive within the city limits on the ground that theordinance restricted the fundamental right guaran-teed to every citizen under the state and federalconstitutions to live where he chooses and to travelfreely.

In the lawsuits by female teachers contestingschool-board maternity rules, One federal districtcourt concluded that the Atlanta school boardpolicy which granted maternity leave to tenureteachers but denied it to iumtenure teachers wasarbitrary and had no rational basis. The courtdeclared that the policy was violative of the equalprotection clause of the Fourteenth Amendmentand ruled that the board must grant maternityleave to tenure and non tenure teachers alike.

In two other cases, pregnant teachers em-ployed in Virginia and Ohio school systems soughtto enjoin the enforcement of maternity regulationswhich required them to take leavein one system,by the end of the fourth month of pregnancy andin the other system by the end of the fifth monthof pregnancy. In both instances the teachersclaimed that the maternity regulations violatedtheir constitutional rights by discriminating againstthem as women, thereby violating the equal protec-tion clause of the Fourteenth Amendment. Afederal district court in Virginia invalidated themandatoy maternity leave regulation under attack,Bolding that the regulation denied pregnant womenequal protection of the laws because it treatedpregnancy differently than other medical disabili-ties without any rational basis for the distinction.

On the other hand, a federal district court in Ohiofound the maternity leave regulation to be entirelyreasonable and concluded that no constitutionalrights of the teachers had been violated. Both ofthese decisions have been appealed.

Professional Negotiation Issues

Recurrent and new legal issues appeared indecisions relating to negotiation between teachergroups and school boards. In accord with thegeneral rule, courts in California and Kentuckyheld that teachers and other public employees haveno right to strike in the absence of a statute givingthem this right. Individual teachers and theirorganizations in Massachusetts, New Jersey, andNew York lost appeals from jail sentences and finesfor criminal contempt for violating injunctionsagainst strikes. Other New York decisions upheldpenalties imposed against teachers who struck inthe form of loss of two day's pay for each workday missed as provided for by the Taylor law.Further, this law, which prohibits strikes and im-poses sanctions, was declared to be constitutional,In a similar vein, the Minneosta Supreme Courtupheld the constitutionality of a state law whichprovides that teachers and other public employeeswho strike automatically abandon and terminatetheir employment, and if subsequently reap-pointed, their compensation cannot exceed theirpre-strike salaries and cannot be increased withinone year of the reappointment, School-board reso-lutions resulting from agreement with Minneapolisteachers associations to pay rehired teachers forsalary lost during a strike as well as salary incre-ments were held to be void.

In several New York cases, courts were askedto resolve differences of opinion between schoolboards and teacher groups on whether certaindisputes were arbitrable under the terms of theirnegotiated agreements. The courts were consistentin ordering the school boards to proceed witharbitration. In one New York case, a school boardsought a judgment declaring illegal certain provi-sions in a contract it had negotiated with a teachersassociation. Four of the provisions had obligatedthe board to pay certain monetary benefits toteachers and a fifth provided for the arbitration ofgrievances relating to tenure teachers. The NewYork Court of Appeals, the highest court in thestate, ruled that the provisions in the agreementwhich the school board challenged were valid sinceeach provision constituted a term or condition Ofemployment as to which the board was requiredto negotiate under the Taylor law. The court

stated that the obligation of the board to bargainon all terms and conditions of employment is abroad and unqualified one and should not be lim-ited except in cases where another applicable stat-tute is explicitly prohibitory. In holding valid thegrievance procedure providing for binding arbitra-tion or disputes involving discipline and dismissalof tenure teachers, the court said the school boardwas not prohibited from agreeing to this procedureeven though the state tenure law provides proce-dures whereby a tenure teacher may challenge anadverse action of the school board.

In another arbitration dispute, the RhodeIsland Supreme Court held that there is authorityunder the state law governing school board/teacherrelations for binding arbitration of grievances innegotiated agreements. Consequently, the Prov-idence school board was bound to submit to

11

binding arbitration the issue of severance pay atretirement based on unused sick leave.

An issue presented in a Wisconsin case was thelegality of the difference in treatment of membersof majority and minority teacher groups in anegotiated agreement. The Wisconsin SupremeCourt held that a clause in a negotiated agreementwhich provided teachers as a matter of' right timeoff with pay only for attendance at the conven-tions of the exclusive bargaining agent while mak-ing minority union members dependent on a favor-able disposition of the school board for clays offwith pay for their convention was discriminatorytreatment in violation of state law. According tothe court, discrimination occurred because theclause had the "effect of discouraging membershipin the minority union by affecting the terms andconditions of their employment."

12

CERTIFICATION AND ELIGIBILITY

California

Alford v. Department of Education91 Cal. Rptr. 843Court of Appeal ofSecond District, Division 1,December 29, 1970.

The state board of education revoked a teach-er's credential in the class of kindergarten-primarylife diploma and refused to grant her applicationfor a general pupil services credential. The teacherappealed to the trial court which refused to reviewthe decision of the board. The present appeal fol-lowed.

The teacher had been employed by the LosAngeles school district on a continuous basisexcept for periods of sick leave from 1951 untilher resignation in 1965. Two of the instances ofsick leave involved hospitalization in a state institu-tion where she was diagnosed as "schizophrenicreactionparanoid type." After her resignation theteacher applied for the additional credential. Thisapplication was denied, and an accusation was filedseeking revocation of the credential that the teach-er did hold.

The accusation alleged that the teacher had ahistory of mental or emotional instability and thatshe was currently suffering from this disability.The evidence to support the accusation was basedupon the two previous confinements for mentalillness and a more recent psychiatric exa mination_The evidence offered by the teacher substantiallyagreed with the evidence submitted by the stateboard. The board then revoked the teacher's certi-ficate.

In her appeal to the trial court the teachersought to call a psychiatrist different from theexpert witness she had used before the board, con-tending that at the time of the hearing before theboard she did not have the funds to employ apsychiatrist more skilled in the art of "forensicmedicine." The trial court denied this request.Before the appellate court the teacher contendedthat the denial of the request to introduce theadditional psychiatric evidence was error; that thetrial court was incorrect in upholding the board inthat there was no substantial evidence to supportthe determination because there was no showingthat her mental illness interfered with her work as

a teacher; and that the state board improperlyproceeded to revoke her certificate by not usingthe appropriate statutory procedure.

The appellate court found that there was sub-stantial medical testimony to the effect that theteacher was unfit to teach and that her certificatehad been properly revoked according to state law.The appellate court did not agree with the argu-ment of the teacher that the board must showactual misconduct or dereliction in the perfor-mance of her duties. The case of Morrison v. StateBoard of Education (82 Cal. Rptr. 175) cited bythe teacher to support her position was distin-guished by the court from the present controversysince in the former case no evidence was offeredregarding the teacher's unfitness to teach while inthis instance there was direct psychiatric testimonythat the teacher was unfit to perform the dutiesauthorized by her certificate.

The court also held that the additional testi-mony sought to be introduced by the teacher wasproperly excluded by the trial court since therewas no showing that it could not have been pro-duced before the hearing. The judgment of the trialcourt was affirmed.

Georgia

Black v. Blanchard179 S.E.2d 228Supreme Court of Georgia,January 11, 1971.

Plaintiffs brought a proceeding to test the rightof the county school superintendent to fill thatposition. The trial court ruled that the super-intendent in question was qualified to serve, andthe plaintiffs appealed.

Involved was a 1963 state statute which sub-stantially increased the minimum qualifications forsuperintendent, but exempted from these newqualifications any person holding office on theeffective date of the law or any person who hadserved at least one term as county school super-intendent. It was conceded that the superintendenthere did not meet the higher qualifications andthat he was qualified to hold office under thestatute only by virtue of having served contin-uously as superintendent of the Columbia Countyschools since January 1949.

The plaintiffs contended that the statute wasunconstitutional in that the exemption provisionviolated a state constitutional provision banningenactment of any special laws in any case forwhich provision has been made by an existing gen-eral law. The main question before the appellatecourt was whether the classification fixed by theexemption provision was a valid one for the pur-pose of fixing qualifications of persons to becounty school superintendents. The court quotedfrom an earlier decision that the state constitutionrequires a law only to have uniform operationwhich means that it must operate alike on all per-sons who come within its scope. This does notmean that it must apply universally. Based on theseprinciples, the court was of the opinion that thestatute did not violate the state constitution be-cause it applied to every county in the state, itfixed the general rules with respect to qualifica-tions for county school superintendent, and it al-lowed exceptions based essentially on experienceas a county superintendent. The court noted that itwas arguable that if the exceptions were not per-mitted, the people might be deprived of the benefitof well-experienced men who were already holdingthe position of county superintendent. The pur-pose of the statute was to secure competence inthe such position, and as a matter of law it cannotbe said that the classification established in theexemption provision bore no reasonable relation-ship to that purpose.

The court also rejected the argument of theplaintiffs that the statute denied the children inColumbia County the services of a qualified super-intendent. The court held that the law did notdeny to the electorate in the county the right tochoose such person as they saw fit to be super-intendent as long as such person met the qualifica-tions of the law. The opinion of the trial court wasaffirmed.

Louisiana

Hill v. Caddo Parish School Board250 So.2d 446Court of Appeal of Louisiana, Second Circuit,June 22, 1971.

(See page 65.)

New York

A nonymous v. Board of Examiners of the Boardof Education of the City of New York318 N.Y.S.2d 163Supreme Court of New York, Special Term,Kings County, Part I, November 30, 1970.

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A junior high-school substitute teacher soughtto prohibit the board of examiners from termi-nating his license for unsatisfactory physical andmedical examinations. In 1965, the teacher wasissued a license for substitute teaching in juniorhigh schools subject to passing the physical andmedical examination. He served in that position forthree and one-half years. In 1968, the teacher ap-plied for a different license as a substitute Englishteacher in the high schools, and in connectiontherewith he underwent a medical examination.

That examination as well as hospital recordsand subsequent examination indicated that theteacher was a heroin addict, that he had had andstill had social and psychological problems that ledto the addiction and that he was currently on amethadone maintenance program. Methadone is asubstitute for heroin and, while not as debilitating,is addictive.

On the basis of the medical and psychiatricreports, the board of examiners denied the teach-er's application for a new license and terminatedhis existing one. The reports indicated that theteacher was not fit to teach at that time or in theforeseeable future, and that methadone is still anaddictive drug. The teacher introduced otherevidence indicating that he was making progress inhis psychiatric treatment and that he had madeexcellent adjustments to society.

It was the opinion of the court that the teach-er had failed to establish that the action of theboard in terminating his license was arbitrary andcapricious in view of his undisputed drug addictionand psychological problems. Unless the standardsused by the board were so irrelevant and inappro-priate as to be palpably arbitrary and unreasonable,the court said, it must sustain them. The courtconcluded by stating that no matter how sympa-thetic it might be to the position of the teacher,since there was a reasonable basis for the decisionof the board of examiners, the court could notsubstitute its judgment for the judgment of theboard. Accordingly, the motion of the teacher wasdenied.

Board of Education of the City of New Yorkv. Nyquist322 N.Y.S.2d 370Supreme Court of New York, AppellateDivision, Third Department, June 24, 1971.

Beginning in 1961 the teacher was assigned asacting principal of an elementary school. Thisassignment was renewed annually. The teacher was,however, never appointed to the position of prin-cipal or paid the appropriate salary because she had

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never passed the required examination for a licenseas an elementary-school principal. She had takenand failed the examination six times. In December1969, she appealed the refusal of the board of edu-cation to grant her a license as principal to thecommissioner of education. The commissionersustained her appeal and directed the board toadjust her title and compensate her accordingly inthe future. The board then brought suit to over-turn this determination. The trial court held thatthe decision of the commissioner was not purelyarbitrary since he had ruled similarly on prior ap-peals and dismissed the case. The board appealed.

State law does not prevent judicial review of adecision which is arbitrary or illegal, and where thecommissioner makes an erroneous determinationon a question of law, his decision in a legal sense isarbitrary and thus reviewable. A provision of thestate constitution applicable to school districts re-quires that appointments and promotions be madeas far as possible by competitive examination.Statute requires that the appointments in super-visory service of the New York City schools beascertained by open qualifying examination andthat appointments be made from eligibility lists.The decision of the commissioner, the court ruled,required the board to make an appointment of theemployee here involved to the position of tenuredprincipal in direct contravention of the state con-stitution and applicable statutes.

Accordingly, the decision of the trial court wasreversed. However, since the commissioner had notyet filed an answer, relief was delayed until he didso.

Chance v. Board of Examiners and Board ofEducation of the City of New York330 F. Stipp. 203United States District Court, S.D. New York,July 14, 1971.

Two teachers, one black and one Puerto Rican,brought a class action against the board of exam-iners and the board of education of the city ofNew York. They alleged that the competitiveexaminations that must be passed by candidatesprior to licensing and appointment to supervisorypositions discriminate against black and PuertoRican teachers and that the tests have not beenvalidated or shown to fairly measure the skill orfitness of a candidate for the position. They allegedthat this discrimination was contrary to the stateand federal constitutions and sought a preliminaryinjunction and declaratory relief. Only the boardof examiners (referred to below as the board)opposed the motion for a preliminary injunction.

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State law permits New York City to providefor examinations in addition to state certification.Candidates for permanent appointment to a super-visory position in New York City must possessstate certification and also meet certain minimumeducation and experience requirements and pass anexamination procedure prepared and administeredby the board for the particular position. Dependingon the type of position sought, the examinationincludes a written portion and an oral interview.Both teachers in this case were acting as principalsat the time that suit was brought. Were it not forthe licensing procedures of the city, both teacherswould have been appointed permanent elemen-tary-school principals. They had state certificationand had completed the educational and trainingrequirements. One had taken the examination andfailed, and the other refused to take the examina-tion. Both teachers were selected for their presentpositions by their respective community schoolboards under New York's decentralization law.

The court found that of the approximately1,000 principals of all levels of schools in NewYork City only 11 were black and only one wasPuerto Rican. The figures for assistant principalswere 7 percent black and 2 percent Puerto Rican.The two teachers alleged that the primary reasonfor the lack of minority supervisors was the testingprocedure. The evidence presented to the court onthis point indicated that for all principalships,white candidates passed the examination at almost11/2 times the rate of black and Puerto Ricancandidates, for assistant principals of junior highschools, whites passed at double the rate of blacksand Puerto Ricans. Additionally, since the tradi-tional route to a principalship is through theassistant principal position, the difference in passrates became even more substantial. The court alsofound that of the five largest school systems in thecountry, New York had by far the lowest per-centage of minority group supervisors.

The court concluded that the evidence estab-lished that the procedures of the examinations forlicensing of supervisory personnel in New YorkCity "do have the de facto effect of discriminatingsignificantly and substantially against qualifiedblack and Puerto Rican applicants." However, thisdiscrimination standing alone, the court said;would not entitle the plaintiffs to relief if theexaminations could be validated as relermt to therequirements of the positions for which they weregiven, that is, whether they are "job-related."

As to the validity of the tests, the plaintiffsargued that the test is useful only if it has pre-dictive validity rather than content validity whichis primarily designed to measure whether a candi-

date has learned a defined body of knowledgerather than for the purpose of determining howwell he will do on the job. The board took the viewthat content validity was more important in deter-mining a candidate's proficiency or capacity to per-form as a principal. In this regard much evidencewas taken, and expert witnesses appeared for bothsides. The court found that despite the board'saims to achieve validity, reliability, and objectivity,its methods to implement the techniques and pro-cedures adopted in principle were insufficient toinsure that the tests would be valid in content,much less in predictiveness. The court felt com-pelled to conclude that while the board adoptedprocedures designed for content validity, it did notappear in practice to have achieved that goal. Thetest questions, according to the court, had littlerelevance to the qualities expected of a schoolsupervisor. They were aimed at testing the candi-date's ability to memorize rather than the qualitiesnormally associated with a school administrator.The court said that this "ability to memorize andregurgitate laundry lists of bad answers is not, wehope, a true test of a candidate's qualifications fora supervisory position." The court made no findingas to the content validity of the oral part of theexamination, but did say that the procedure onthis part leaves open the question of whether whitecandidates are not being favored unconsciously bycommittees of examination assistants who havebeen entirely or predominantly white. The courtdid find that the examinations were conducted inan objective manner.

Concluding that the examinations did dis-criminate against black and Puerto Rican appli-cants and that they were not valid from a contentpoint of view, and were not job-related, the boardwas preliminarily enjoined from conducting furtherexaminations of this type and from promulgatingeligibility lists based on these examination pendinga trial on the merits.

NOTE: This decision was upheld by the U.S. Courtof Appeals for the Second Circuit. (40 U.S. LawWeek 2743, April 5, 1972.)

Council of Supervisory Associations of thePublic Schools of New York City v. Board ofEducation of the City of New York318 N.Y.S.2d 220Supreme Court of New York, Special Term,Kings County, Part I, January 26, 1971.

The Council of Supervisory Associationsbrought a proceeding challenging the action of theboard of education in appointing principals of in-

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termediate schools without regard to the eligibilitylist drawn up for principals of junior high schools.

In 1965, New York City proposed to alter thestructure of its school system to a system of ele-mentary, intermediate, and high schools, dividedinitially on a 5-3-4 year basis and ultimately on a4-4-4 year system. The state board of regentsamended the regulations of the state commissionerof education to permit this experiment, includinggranting approval to the school board to employ anappropriate licensed teacher "for any teachingassignment, within the scope of the experiment,for which the teacher is deemed, by the Super-intendent, or other legally authorized body,qualified by education and experience." By thetime this case was heard 40 intermediate schoolshad been created and had started on some portionof the new curriculum designed for these schools.

It had been the practice of the board of educa-tion to make temporary assignments of principalsof these intermediate schools from the existingjunior high-school principals list. The list had beenpromulgated prior to the adoption of the policy ofreorganization of the schools.

In April 1970, a principal vacancy occurred atone of the intermediate schools located within theconfines of a community board of education. Thecommunity board sought to appoint to the posi-tion a teacher who was not licensed as a juniorhigh-school principal and was not on the juniorhigh-school list. The teacher was certified as an ele-mentary-school principal and had been serving asan acting assistant elementary-school principal forfour years.

The Council contended that the existing listfor the junior high-school principals was intendedto serve interchangeably and exclusively for ap-pointment to either a junior high school or an in-termediate school, and, therefore, the vacancy atthe intermediate school must be filled within sixmonths by a person whose name appeared on thelist or by transferring an appointed junior high-school principal. It was further claimed that theappointment of the teacher as acting principal forthis vacancy violated a resolution of the board ofeducation providing requirements for the selectionof acting principals.

The court found that an intermediate schoolwas different from a junior high school in the ageof the pupils, the scope of the curriculum, and theaims of the school. In sum, 'the court said, "theintermediate school is a unique field of view in anexperimental stage and is not a junior high school."Nor did the court find the intermediate school tobe a junior high school as defined by the regula-tions of the commissioner or board bylaws.

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Considering that the eligible list for juniorhigh-school principals arose at a time when the in-termediate school was not even planned, the courtconcluded that the list was not intended to be theeligible list for intermediate schools. Also, theboard of education suspended its bylaws relating toappointment of personnel and authorized themaking of "such assignments of personnel as arerequired to accomplish the aforesaid program, in-cluding assignments of junior high school person-nel." The court noted that this resolution merelypermitted but did not require the assignment ofjunior high-school personnel to the intermediateschools. The court concluded that there was noappropriate eligibility list for appointment as inter-mediate school principal and at most the juniorhigh-school list was an optional one.

The court also concluded that the qualifica-tions of the teacher in question did meet the re-quirements of the board of education for appoint-ment as acting principal of the intermediate school.The petition of the Council was dismissed.

Council of Supervisory Associations of thePublic Schools of New York City v. Board ofEducation of the City of New York324 N.Y.S.2d 778Supreme Court of New York, Special Term,New York County, Part I, September 2, 1971.

The Council of Supervisory Associationssought a temporary injunction to bar the NewYork City board of education from permitting anallegedly unlicensed person to act as a public-school principal. The case arose when a vacancyoccurred at an elementary school under the juris-diction of Community School Board No. 3. At thattime there were 215 people on the eligible list forthe vacancy but the community board declaredthat "none was found qualified." To accommodateto the desires of the community board, the boardof education transferred to the position for payrollpurposes only a person on medical leave. Since hewas unable to serve, the community board'snominee was appointed as acting principal. Theacting principal held state certification as a secon-dary-school principal and had one year of super-visory experience, but he was not licensed by thecity and was not on the eligible list.

At the time the court decided this case, therewas no longer an eligible list for elementary-schoolprincipals, the same having been abolished bystatutory enactment, and all persons on the listwere deemed appointed as of April 1, 1970, withthese persons receiving the higher pay and the titlewhile awaiting assignments to vacancies that would

1.6

arise. The Council alleged that several of these per-sons were serving as auxiliary principals in the localdistrict while the position of principal was held byan unqualified person.

The court recognized the problem in fillingeducational positions and noted that variousdevices had been employed by the board of educa-tion to grant greater flexibility to the communityboards in making appointments by giving newnames and titles to vacant positions. One of theseis the appointment of an acting principal. Underthe bylaws of the board of education certainclasses of persons are eligible for appointment asacting principals, including persons with state certi-fication and one year of supervisory experience. Itwas under this provision that the acting principalwas appointed here. Thus, it appeared that theletter of the law had been complied with in ap-pointing the acting principal in this instance. Whilethe Council charged "that this is a transparentattempt to circumvent the true guiding spirit of thelaw," the court was unable to find "in view of theCourt of Appeals directive to accord a considerabledegree of leeway to the experiments of the Boardof Education, that there has been such a flagrantand arbitrary flouting of the law that a temporaryinjunction should issue." Furthermore, since theappointment of the acting principal all eligible per-sons on the list had been given the rank and title ofprincipal, the only complaint the Council couldmake on their behalf was that one of their numberwas being deprived of the assignment at the partic-ular school which assignment was still the functionof the board. Accordingly, the application for apreliminary injuction was denied.

Henock v. Bergtraum321 N.Y.S.2d 1Supreme Court of New York, AppellateDivision, Second Departnient, May 17, 1971.

In September 1968, certain teachers took acompetitive examination for the position of juniorhigh-school assistant principal in New York City. Aranked list resulting from this examination waspromulgated on July 15, 1969. Subsequently, theboard of education announced that the list wouldbe treated as a qualifying list only. The teacherssued to enjoin the board from making this conver-sion from competitive to qualifying.

At the time that the teachers took the exami-nation, supervisory appointments had to be madefrom the first three positions on a ranked list.However, effective April 30, 1969, prior to thepromulgation of the list here involved, that sectionof the law' was amended to delete the requirement

that supervisory personnel be appointed from acompetitive list. Nothing was substituted for thedeletion, nor was any provision made for the treat-ment of the existing list or those not yet pro-mulgated. At the same time, the New York CityDecentralization Act was passed, which providedthat supervisory appointments be made from aqualifying list. Because of the different effectivedates of the two acts, there was a period whenthere was no legislative direction as to how ap-pointments were to be made.

The trial court dismissed the complaint, andthe teachers appealed. The teachers acknowledgedthat the legislature had the right to determine thata competitive test was no longer practicable, butthey disputed its right to do so with respect to thewhole supervisory service with one fell swoop. Thecourt found authority for this distinction and heldthat the teachers had not sustained their burden toestablish arbitrariness or unreasonableness.

The teachers also argued that they had a vestedright to have the list employed as a ranked list untilit expired or was exhausted. The court said thatthis argument overlooked the fact that the law waschanged prior to the time that the list was pro-mulgated. By the time their list had been estab-lished, the position had been reclassified out of thecompetitive class.

In the opinion of the court, the decision of theschool board to convert the list from a competitiveone to a qualifying one during the period of hiatusin legislative direction was not an unreasonableexercise o f administrative discretion. The trialcourt decision was affirmed.

Hellmann v. Board of Education of theCity of New York320 F.Supp. 623United States District Court, S.D. New York,December 7, 1970.

In February 1970, a physically handicappedteacher applied for and was denied a license toteach in the New York City schools. The reasongiven by the board of examiners was that since theteacher was confined to a wheelchair, she wasphysically and medically unsuited for teaching.The teacher notified the board that she wished toappeal this decision, and the administrative processwas begun. While thr _,ppeal was still pending, theteacher brought this suit under the federal civilrights act, claiming violations of the due processand equal protection clauses of the FourteenthAmendment and seeking declaratory and injunctiverelief and damages in the event she did not obtain aposition for the 1970-7 1 school year.

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The court denied the teacher's motion for apreliminary injunction on the ground that theadministrative appeal was pending. Subsequently,the board of examiners reversed its previous deci-sion and granted the teacher a license, and thenmoved to dismiss the suit. As of September 1970,and at the time of the court hearing, the teacherwas employed in the New York City school sys-tem.

The court ruled that by virtue of receiving theteaching license and being employed the teacherhad been granted the essential relief she soughtand, therefore, lacked standing to challenge thealleged constitutional inadequacies of the pro-cedures and standards by which her applicationwas judged. The court also ruled that the teacher'sclaim for damages did not affect the essentialmootness of the action. Aside from the fact that aclaim for damages, standing alone, will not supporta civil rights action, the teacher did not specificallyclaim damages for the period during which herappeal was pending, but rather appeared to makeher claim contingent upon her inability to obtain ateaching post for September 1970. The motion ofthe board to dismiss the action for lack of jurisdic-tion over the subject matter was granted.

Parents Association of Public School 222 K v.Community School Board of Local School District319 N.Y.S.2d 864Supreme Court of New York, Special Term,Kings County, Part I, March 26, 1971.

The parents association of School 222 Ksought an order that would direct the communityschool board to remove an acting principal, compelthe board to enter into "meaningful consultation"with the association for the purpose of selecting anacting principal, and grant to the association a rea-sonable right to reject candidates for the positionof acting principal.

It appeared that the board had appointed anacting principal for one semester over the objec-tions of the parents association of the school. Theparents association contended that the decentral-ization law applicable to New York City did notpermit appointments by the community schoolboard without prior consultation with the parentsassociation. The community board maintained thatit was not required to share with the association itspower to appoint and assign employees within thelocal school district.

The court found that the decentralization lawrequired each community school board to adopt abylaw for the recognition of the parents associa-tion, and, except for granting the association the

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right to have "full factual information pertainingto matters of pupil achievement," the legislaturedid not give parents associations any other statusor rights. Therefore, the manner in which theacting principal was chosen was not in violation ofthe statute. Although cognizant that the com-munity board in this case had a bylaw by which itundertook to have consultation with the parentsassociation prior to the selection, appointment,and assignment of principals and assistant princi-pals, the court ruled that the appointment of anacting principal for a limited or temporary perioddid not violate this bylaw.

The court also held that the parents associa-tion had not exhausted its administrative remediesnor asserted that the remedies were inadequate. An

appeal could have been taken to the Chancellor ofthe New York City Board of Education and thento that board. In addition, a further appeal couldhave been taken to the state commissioner of edu-cation. Since the association had not availed itselfof any of its procedural remedies, nor offered toshow that they were inadequate, its judicial actionwas premature. In view of this determination thecourt did not reach the question of whether thecommunity board had engaged in good-faith con-sultation with the parents association in con-formity with its own bylaw, nor did the court con-sider the association's assertion that it had a rea-sonable right to reject candidates for the post ofacting principal. The petition of the parents wasdismissed.

Arkansas

Arkansas Education Association v. Board of Edu-cation of Portland, Arkansas School District446 F.2d 763United States Court of Appeals, Eighth Circuit,July 26, 1971.

The Arkansas Teachers Association (ATA)originally brought a class action in 1968 against theschool board to enjoin it from paying different sal-aries to black teachers than were paid to whiteteachers. Intervention was permitted by a blackteacher who claimed to be a member of the class.Prior to trial the school board integrated the schoolsystem and began paying all of its teachers at thesame rate. Thus, the only real issue at trial was theback pay for the black teachers employed by theschool district in 1966-67 and 1967-68.

The trial court dismissed the suit and the Ar-kansas Education Association (AEA) as successorto ATA appealed. The AEA claimed that the trialcourt erred in dismissing ATA as a proper party tobring the suit, in holding that the disparities be-tween the salaries of black and the salaries of whiteteachers were not a constitutional violation, and inholding that the plaintiffs were not entitled toattorney fees. The school board cross-appealed,charging error in the trial court finding that thepersons seeking relief were of a sufficient numberto warrant a class action; that ATA had legal stand-ing to bring suit; and that the intervening teacherwas a proper person to represent the class.

The appellate court held that the 17 affectedteachers were a sufficient number to permit a classaction and that both AEA and the interveningteacher were proper parties to bring suit. Further,the class action should not have been dismissedmerely because a subsequent change in the school-board salary policy eliminated the need for injunc-tive relief, leaving only the question of damages.

On the substantive issue, the evidence estab-lished that in 1967-68 no black elementary-schoolteacher earned more than $4,500, while no whiteelementary-school teacher was paid less than$5,000. For secondary teachers, the highest paidblack teacher earned $4,800 and the lowest paid

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white teacher earned $5,300. Similar discrepanciesexisted for 1966-67. The appellate court said thesefigures led to the conclusion that for the years inquestion the school district "systematically andwithout exception paid black teachers substantiallyless than they paid white teachers," The court heldthat this was constitutionally impermissible, and,therefore, the black teachers who were discrim-inated against were entitled to recover the differ-ence between what they were paid and what theywould have been paid if the school district hadtreated all teachers equally.

The judgment of the district court was re-versed and the case remanded for a determinationof the amount of damages and the question ofattorney fees.

Florida

Board of Public Instruction of Dixie Countyv. Locke243 So.2d 6District Court of Appeal of Florida, First Dis-trict, December 29, 1970.

(See page 33.)

Illinois

Hardway v. Board of Education of LawrencevilleTownship High School, District No. 71274 N.E.2d 213Appellate Court of Illinois, Fifth District,September 16, 1971.

The board of education appealed from the trialcourt decision which awarded certain teachers backsalary. In 1967, the state minimum salary law hadbeen amended to provide for higher minimum sal-aries and to add a section providing for higher sal-aries based upon "experience in a school district."The state superintendent interpreted this to meanprevious experience in the school district currentlyemploying the teacher. Accordingly, the Lawrence-ville school district adopted a revised salary sched-ule that granted increased salaries recognizing onlyexperience in that district. Eight teachers brought

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suit seeking full credit for their previous teachingexperience outside the district.

The trial court held that when a statute is sub-ject to two or more interpretations, it should begiven the meaning intended by the legislature.Since in August 1968, the statute was amended bydeleting the words "based upon experience in aschool district" and replacing them with the words"based upon previous public school experience,"the trial court viewed this as a clarification of thelegislature's original intention. On appeal, theschool board contended that the 1968 change wasa major revision in policy and not a clarification ofthe language, and, therefore, its 1 9 67 salary sched-ule was correct.

The appellate court agreed with the decision ofthe trial court that the 1968 change was a clarifica-tion, especially in view of the fact that the effec-tive date of the provisions, July 1, 1968, was notchanged. The judgment of the trial court in favorof the teachers was affirmed.

Massachusetts

Fitchburg Teachers Association v. School Com-mittee of Fitchburg271 N.E.2d 646Supreme Judicial Court of Massachusetts,'orcester, June 30, 1971.

The teachers association sought payment ofsalary adjustments to certain teachers due themunder an amendment to the negotiated contractbetween the parties. The trial court denied reliefand the association appealed.

The parties had a three-year negotiated agree-ment which was subject to annual re-opening onmatters of compensation and working conditions.An amendment to the contract made in October1 968 was at issue here. Under this amendmentwhich became effective January '1, 1969, theschool committee agreed to pay "salary adjustmentfor a teacher's final year of service before retire-ment" based on the number of days over 170served in each year of service. In June 1969, theschool committee submitted to the city auditor anorder for payment of sums due under the amend-ment to teachers retiring in 1969. Payment wasrefused on the ground that it would be improper.The trial court had ruled that the amendment wasvalid and proper, but dismissed the claim on theground that the city had never appropriated anymoney to make the payments.

The appellate court said that on the assump-tion of a sufficiency of funds, there was no error inthe trial court holding that the amendment was

valid. The court held that the amendment pro-viding for the salary adjustment was a valid exer-cise of the school committee's power to set wagesand conditions of employment through the processof collective bargaining. In addition, the provisionwas reasonable since days in excess of 170 repre-sented unused sick and personal leave, and wouldbe limited to 10 days a year. Thus, the provisionhad the effect of rewarding lengthy and continuingservice by teachers and discouraging frivolous useof such leave.

With regard to the funding, the appellate courtdid not find it necessary that there be a specificappropriation for this payment. The lack of suchan allocation, the court said, would have no bear-ing on the committee's power to order the amountdue paid so long as the payment did not cause thecommittee to exceed its total appropriation. Theopinion of the trial court was reversed and thematter remanded to determine whether there wereat the end of June 19 69 sufficient unexpendedfunds in the total school appropriation for 1969 tomake the payments required by the amendment tothe contract.

Mississippi

United Slates v. Tunica County School District323 F.Supp. 1 019United States District Court, N.D. Mississippi,Delta Division, July 16, 1970.

(See page 90.)

New York

Board of Education of Central School DistrictNo. 2, Town of Oyster Bay v. Nyquist319 N.Y.S.2d 661Supreme Court of New York, Appellate Division,Third Department, April 5, 1971.

(Sec Teacher's Day in Court: Review of 1969,p. 16.)

The board of education appealed from the de-cision of the trial court upholding a decision of thecommissioner of education that a nurse-teacherwas entitled to back pay for six years. The teacherhad been paid for 15 years according to a salaryschedule for nurse-teachers. The amount she re-ceived was above the statutory minimum but sub-stantially less than the district paid classroomteachers. From time to time, the teacher had askedthe board to classify nurse-teachers as teachers andto pay them accordingly. A few months prior toher retirement the teacher appealed to the com-

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missioner, seeking back pay for the 15 years. Find-ing no reasonable basis for the difference in classifi-cation, the commissioner ordered back pay for sixyears.

The appellate court said that unless the deci-sion of the commissioner on an educational matteris arbitrary or unreasonable, it will not be dis-turbed by the courts. The court ruled that thequestion of whether the local school board actedunreasonably in placing a certified teacher in anonteaching classification was a policy matter inwhich the commissioner could substitute his judg-ment for that of the local board. Therefore, therewas no basis for the court to disturb the determina-tion of the commissioner that there should be nosalary distinction between nurse-teachers and regu-lar teachers. However, with regard to directing thepayment of the back salary, the appellate courtfound that the commissioner had exceeded hisauthority. The appellate court could not sec wherethe teacher had any legal right to back salary at thetime she commenced her action. Since the com-missioner had not yet filed an answer in thisaction, however, the holding was limited to thepetition as existing at the time of appeal.

The judgment of the lower court was reversedand the case remanded to the lower court forfurther proceedings.

Board of Education of Union Free SchoolDistrict No. 3 v. Nyquist317 N.Y.S.2d 212Supreme Court of New York, Special Term,Albany County, December 21, 1970.

The board of education of Union Free SchoolDistrict No. 3 of Hempstead brought an actionagainst the state commissioner of education, seek-ing to annul his determination that teachers werepart of a summer school program and had to bepaid in accord with the summer school salaryschedule, and that the local board could not avoidthis rule by having made a collateral contract withthe teachers.

The court held that the proceedings before thecommissioner involved an educational administra-tive policy in which the commissioner had the pre-rogative to substitute his judgment for that of thelocal board. The petition of the school board wasdismissed.

Board of Education, Union Free School DistrictNo. 18 v. Boken316 N.Y.S.2d 286Supreme Court of New York, Special Term,Nassau County, Part 1, December 9, 1970.

21

The board of education brought suit against aformer teacher to recover the amount of salarypaid to her while on sabbatical leave. The teacherhad not returned to the school district followingcompletion of the leave as she had agreed to do.

The teacher had been granted leave for the1967-68 school year during which time she waspaid one-half her regular salary. Prior to the end ofthe leave she requested an additional year withoutpay to complete her studies; this was granted. Atthat time the school district reminded the teacherthat she must return to the school district for atleast two years beginning September 1969. In April1969, the teacher sent a letter of resignation. Shewas again informed that she was not free to resignunless she was prepared to pay back the amountthat she had been paid while on leave.

The teacher argued that she had not signed anyagreement to return to the district. She furtherargued that the moneys paid her during sabbaticalleave were in fact additional compensation forseven years of prior service to the district. It wasthe opinion of the court that there was no validdefense to the school board's suit in view of theboard rules adopted pursuant to statute whichmade the return to the district a condition of thepayment of salary during a sabbatical leave. Ac-ceptance of the salary by the teacher while onleave was acceptance of the condition imposed.The court held that since the teacher did not re-turn to the district, she must refund the money.Further, her offer to return to the district after thisaction was commenced was not sufficient com-pliance with the rules.

Goldin v. Board of Education of the City ofNew York324 N.Y.S.2d 823Supreme Court of New York, Special Term,Kings County, Part I, September 27, 1971.

A regularly licensed teacher of commonbranch subjects appealed from the school board'sdenial of her application for a second salary differ-ential. She claimed that she was entitled to theincreased salary by virtue of a normal schooldegree and 45 hours of additional credit as pro-vided for in the negotiated contract. The schoolboard contended that the section of the contractapplicable to the teacher required 60 hours ofcredit beyond the degree, not the 45 that sheasserted was necessary.

It appeared that this issue had previously beenarbitrated by the board and the teachers union;this resulted in the sustaining of the board's posi-tion. A clause in the contract between the parties

22

stated that the board would apply to all substan-tially similar situations the decision of an arbitratorsustaining a grievance and that the union wouldnot bring or continue or represent an employee inany grievance substantially similar to a grievancedenied by the decision of an arbitrator.

The teacher, a member of the teachers union,claimed that she was not bound by the arbitrator'sdecision of 1964, and that such decision was notconfirmed by the court within one year of its deliv-ery and could not now be confirmed or enforcedand now had no legal effect.

The court ruled that the interpretation giventhe contract by the board was binding and inaccord with the provisions contained in the con-tract. Furthermore, since the teacher sought thebenefits of the contract, she was likewise bound byall its terms which inure to her benefit as well as tothe benefit. of all the members of the teachersunion. The court found the action of the boardwas proper and dismissed the petition of the teach-er.

Schwartz v. North Salem Board of Education318 N.Y.S.2d 774Supreme Court of New York, Westchester County,January 18, 1971.

(Sec page 108.)

Sife v. Board of Education of the City of NewYork317 N.Y.S.2d 557Supreme Court of New York, Special Term,Kings County, Part I, November 17, 1970.

(Sec page 45.)

Walsh v. Nyquist325 N.Y.S.2d 1 03Supreme Court of New York, Appellate Division,Third Department, October 21, 1971.

(See page 46.)

Wilson v. Board of Education, Union Free SchoolDistrict No. 23, Town of Oyster Bay319 N.Y.S.2d 7 21Supreme Court of New York, Special Tcrm,Nassau County, Part I, December 10, 1970.

(See page 109.)

CONTRACTS

Arkansas

Corbin v. Special School District of Fort Smith465 S.W.2d 342Supreme Court of Arkansas, April 5, 1971.

In January 1970, the Fort Smith board of di-rectors adopted a resolution stating that thespouses of the superintendent, assistant superin-tendent, and the director of finance and businessaffairs would not be employed by the school dis-trict in any capacity. As a result of this resolutionthe wife o f the superintendent was advised that shewould not be re-employed as a teacher for the1970.71 school year. The teacher brought suit con-tending that the regulation was void and that shewas still employed by the school district. Shesought a judgment for salary allegedly due her andfor reinstatement. The trial court denied relief andthe teacher appealed.

The first question on appeal concerned thestate administrative procedures act. The teacheralleged that the resolution was not adopted inaccordance with this legislation. The parties agreedthat the act applied only to state agencies but dif-fered as to whether a school district was a stateagency. The court held that a school district was apolitical subdivision and not a state agency withinthe meaning of the act.

The next contention on appeal was that theschool-board resolution was attempting to set thequalifications of teachers and that the legislaturehad not delegated this power to school districts.The court disagreed with the teacher's interpreta-tion of the resolution, noting that it had nothing todo with the teacher's qualifications. Rather, it in-volved the district board's discretion in the em-ployment of teachers as authorized by law. Havingconcluded that the board had the authority toadopt the resolution, the court then consideredwhether the resolution was arbitrary or unreason-able. The court could not say from the record thatthe resolution was arbitrary or unreasonable forthere was no evidence from the record that theboard abused its discretion. The court held that thetrial court was correct in not interfering with thatdiscretion.

The teacher's final point was that a schoolboard may not dismiss a teacher arbitrarily. The

23

court reviewed the continuing contract law andfound that the teacher had been notified in ac-cordance with that law that her contract would notbe renewed. The court was of the opinion that therights of the teacher were governed by her contractand by the continuing contract law and not on "anexpectancy of continued employment" while herhusband was superintendent of the school district.The judgment of the trial court was affirmed.

Hampton School District No. 1 ofCalhoun County v. Phillips470 S.IV.2d 934Supreme Court of Arkansas, October 4, 1971.

A discharged superintendent brought suitagainst the school district, claiming that his dis-charge was in violation of his contract. Suit wasbrought in equity to obtain a reformation of thecontract on grounds of mutual mistake and to re-cover damages for wrongful discharge. The courtruled in favor of the former superintendent, andthe school district appealed, charging lack of juris-diction of equity court and that, in any event, thesuperintendent was not entitled to damages.

It appeared that it was the practice of theparties to execute two-year contracts effective July1. Toward the end of the first year of the contractthe parties always made a new two-year contract,usually containing a raise in salary. Consequently,each new two-year contract superseded the secondhalf of the previous contract. On July 1, 1969, theparties executed a new contract containing a salaryraise. However, by mistake the superintendent'ssecretary used a one-year form in making out thecontract rather than the two-year form the partiesintended to use; also, she failed to include a pro-vision concerning the house furnished the superin-tendent by the school district. In February 1970,the superintendent noticed the mistakes in the con-tract and attempted to execute a corrected con-tract to file with the county treasurer. This at-tempt was abortive, however, since he used thefacsimile signature of a school-board president whowent out of office before the corrected agreementwas filed with the county treasurer. In April 1970,the school board took the position that the con-

ofwit.)

24

tract was effective for only one year and, there-fore, the superintendent's employment would beterminated on June 30, 1970. Suit was thenbrought.

The appellate court found no merit in theschool district's contention that equity court didriot have jurisdiction, saying that reformation ofWritten instruments for mutual mistake is a matterwithin the exclusive jurisdiction of equity. Thesecond argument of the school district, that thesuperintendent had only a one-year contract, wasalso rejected by the appellate court. The evidenceclearly showed that it was the practice of theparties to issue two-year contracts and there wasno proof that the school board meant to change itspractice. The superintendent and his secretarytestified, without contradiction, that the one-yearlimitation was a mistake on the part or the secre-tary. That the secretary or even the superintendenthimself acted for the school district in affixing thefacsimile signatures did not mean that it was im-possible for both parties to be mistaken in sosigning an agreement that did not express theirtrue intent.

The appellate court held that the trial courtwas correct in reforming the contract. Since a re-formed contract is retroactive, the superintendenthad a valid contract at his discharge and was en-titled to recover damages. The appellate court held,however, that the superintendent was not entitledto recover for loss of travel expenses for the yearthat he was not employed by the board since hedid not travel for the district during that time.

Mitchell v. Alma School District No. 30332 F.Supp. 473United States District Court, W.D. Arkansas,Fort Smith Division, October 4, 1971.

An elementary-school teacher brought a civilrights action against the school district, chargingthat his contract was not renewed because of hisefforts to form a classroom teachers association.The school board alleged that the reason for non-renewal was "his persistent failure to observeannounced administrative policies regarding disci-pline of students."

The teacher's version of the facts was that theschool system employees voted under a change inthe Arkansas Education Association constitutionto become a part of the all-inclusive county-wideunit with provision for a separate classroom teach-ers organization. He alleged that he was not rehiredbecause of his activities in attempting to form thisseparate organization to which the superintendentwas opposed.

The school-board version was that althoughthe teacher had been employed by the system for10 years and was considered a good and effectiveteacher, he was unable to follow directives con-cerning the administering of corporal punishmentto students. The board alleged that the teacher wasaware of its announced policy that the child shouldbe counseled first, and that if paddling was neces-sary, it should not be administered without anadult witness present. In spite of these announce-ments the school officials continued to get com-plaints that the teacher ;Administered paddling out-side the presence of adult witnesses.

The court noted that while the teacher testi-fied to virtual ignorance of this policy, he hadacknowledged to his principal that he heard itannounced at a faculty meeting and that he turnedin reports as required showing when corporalpunishment was administered, and some of thesereports indicated the presence of adult witnesses.The court found that the teacher had a clearknowledge of the policy. The court also found con-clusive evidence that the teacher had appearedbefore the board at a meeting in which it was toconsider the recommendations of the superin-tendent that the teacher's contract not be renewed,that all discussion at that meeting related to hisproblems of classroom discipline, and that hisactivities in the teachers association were nevermentioned. The court concluded that the teacherhad failed to show that his contract was not re-newed because of his association activities.Further, the board considered only the teacher'sfailure to follow the announced discipline policy inits decision not to renew his contract. Finding noabuse of discretion on the part of the school board,the court dismissed the petition of the teacher.

California

Lucas v. Board of Trustees of Armijo JointHigh School District96 Cal.Rptr. 431Court of Appeal of California, First District,Division 3, July 28, 1971.

The former superintendent of a high schooldistrict brought suit to compel his reinstatement.The trial court denied relief, and the superin-tendent appealed.

The superintendent had been employed for afour-year term beginning July 1, 1963. State lawprovides that a superintendent is automatically re-employed for a term of similar length unlessnotified in writing to the contrary at least sixmonths prior to the end of his term. During itsregular meeting on September 19, 1966, the board

went into executive session and voted not to re-employ the superintendent. The superintendentwas informed of this action and asked whether hewanted it made a matter of public record. Hereplied that he wished the matter to remain privateuntil he consulted his attorney. At the regularNovember meeting, the board reconsidered itsaction, again in executive session, and voted oncemore not to re-employ the superintendent. Againthe superintendent requested that public notice bewithheld until he consulted his attorney. InDecember 1966, the superintendent was givenwritten notice that he would not be rehired, and inMarch 1967, the board amended its formal minutesof the September and November meetings to showthat the superintendent was not being rehired.

The court found substantial evidence tosupport the finding that the board had voted inSeptember not to rehire the superintendent. Thecourt also found no merit in the superintendent'scontention that the September and Novemberactions were invalid because they occurred inexecutive session rather than in an open meeting.State law permits the board to consider personnelmatters in executive session, and this, the courtruled, includes acting on such matters in executivesession. Likewise rejected by the court was thecontention that the termination should have beenincluded on a published agenda. The court felt thatthis would negate. the purpose of the statute per-mitting personnel matters to be considered inexecutive session.

The final finding of the appellate court wasthat the superintendent was estopped from arguingthat the amended minutes were invalid for thesereasons. The superintendent was secretary of theboard and charged with taking the minutes orcausing them to be taken. He was informed thatrenewal of his contract would be considered, yethe did not ask anyone else to keep the minutes.Moreover, he was informed of what action theboard had taken at the end of the executive ses-sion, yet he did not indicate this action in theformal minutes and in fact requested that thematter not be made public.

The judgment of the trial court was affirmed.

Idaho

Heine v. School District No. 271481 P.2d 316Supreme Court of Idaho, February 24, 1971.

A teacher appealed from the trial court judg-ment dismissing his claim of damages for wrongfuldischarge on grounds of insufficient evidence. The

25

teacher alleged (a) that he was wrongfully dis-charged by the school district in 1963, (b) that thestate department of public instruction wrongfullyrefused to certify him as an elementary- schoolteacher, and (c) that all of the defendants con-spired against him and defrauded him of his rightto be employed. Besides the school district thedefendants included the state of Idaho and thestate superintendent of public instruction, the localand state education associations, and the NationalEducation Association.

The trial court dismissed the case against thestate, the state board of education, and the statesuperintendent since service was never effectivelycompleted upon them. Upon the conclusion of theteacher's case, the complaint was dismissed as tothe three education associations. The second claimof the teacher was dismissed on the ground thatthe state board of education was the only adminis-trative board authorized to issue a certificate, thatit was not a party to the lawsuit, and thus theclaim could not be decided. The third claim, thatof the conspiracy to prevent the teacher's employ-ment, was dismissed for a lack of evidence.

With regard to the first claim, that of wrongfuldischarge, the trial court had found that the teach-er's employment was conditioned on three things:taking additional history courses, registering a validcertificate with the local school board, and signinga written contract to teach. Finding that only thefirst requirement had been complied with, the trialcourt upheld the discharge.

On appeal the teacher claimed that the find-ings of the trial court were not supported by sub-stantial evidence. From the evidence in the recordthe appellate court found that the teacher wasoffered a teaching position, but that he neversigned the written contract and never presented avalid certificate. However, he did teach fromSeptember 1963 until Christmas vacation, .afterwhich he failed to return to his duties. On reviewof the record, the appellate court concluded thatthere was substantial support for the findings ofthe trial court that there was no evidence tosupport the conspiracy theory and that service hadnever been properly made on the state defendants.Accordingly, the decision of the trial court againstthe teacher was affirmed.

Iowa

McGuffin v. Willow Community School District182 N.W.2d 165Supreme Court of Iowa, December 15, 1970.

(Sec page 35.)

44::0

26

Kansas

Endicott v. Van Pet ten330 F.Supp. 878United States District Court, D. Kansas,August 12, 1971.

(See page 64.)

Missouri

Williams v. Longtown School District No. 71of Perry County468 S.W.2d 673St. Louis Court of Appeals, Missouri,May 25, 1971.

An elementary-school teacher appealed fromthe trial court decision in favor of the board ofeducation on her breach of contract suit. Theteacher had been employed for the 1967-68 schoolyear to teach grades 5 through 8. On December 11,1967, the three members of the school boardaccompanied by the superintendent met her afterschool. What happened was in sharp dispute, butthe next day a substitute teacher was in the class-room. For the next four days the teacher returnedto school prepared to teach, but the substituteteacher was always there. There were no minutesof the December 11 meeting of the board, but theminutes of the December 21 meeting stated that itwas decided to dismiss the teacher because she wasunable to perform her obligations as a teacher.

The following day a letter was sent to theteacher, accepting her oral resignation. On Decem-ber 28, the teacher, through her attorney, deniedthat she had resigned. The return letter from theboard of education again referred to the teacher'soral resignation, stating that the teacher had said,"If you are going to withhold my pay, I quit rightnow. Get yourself another teacher." The case wastried on the question of whether the teacher re-signed or was fired.

Testimony at the trial indicated that the teach-er was not permitted to teach after December 11,and referred to the minutes stating that she wasdismissed. The only evidence which purported toshow that the teacher resigned were the lettersfrom the school board to the teacher.

Under state law the board of education couldhave withheld the teacher's salary only after writ-ten notice to the teacher. No such notice was givento the teacher. Thus, the members of the boardhad no right to threaten to withhold the teacher'ssalary. And even if the teacher did say that shewould quit, the appellate court said, under the

circumstances this statement did not amount to aresignation.

The court concluded that the overwhelmingweight of the evidence demonstrated that theboard dismissed the teacher in clear violation ofstate law. The decision of the trial court was re-versed with directions that the teacher be awardedthe damages caused by the board's breach of hercontract.

Oregon

George v. School District No. 8Rof Umatilla County490 P.2d 1009Court of Appeals of Oregon, Department 2,November 11, 1971.

The school district appealed from the trialcourt decision, holding that a teacher's contracthad been breached and that the teacher was en-titled to reinstatement and damages. The teacher,employed by the system since 1962, had beengiven a three-year contract ending in 1971 at asalary of $11,300. Broken down, this consisted ofa base salary of $9,300 and $2,000 for coaching.After two unsuccessful seasons, during which thefootball team won only two games, the teacher wasrelieved of his position as coach. At first nothingwas said about whether this action would affect hissalary, but when the notification for the 1969-70salary was sent out in the spring, it did not includethe $2,000. At this point two years of the teacher'sthree-year contract remained. The teacher modi-fied the notification form by inserting the $2,000,and the school district then refused to accept it,treating it as a refusal to teach and declared theposition vacant. Suit was then brought.

The teacher asserted that the contract wasindivisible at an annual salary of $11,300. While heagreed that the school district could relieve him ofhis coaching duties, he insisted that the boardcould not, by changing his duties, lower his salaryduring the contract term. The board argued thatthe contract was divisible, one a three-year con-tract to teach, the other, a one-year contract tocoach football. The appellate court looked at thecustom and usage in the school district and atother cases that had arisen, and concluded that thetrial court was correct in upholding the teacher.There was nothing in the contract to suggest thatthe parties intended that the teacher not have asingle three-year contract covering teaching andcoaching. The testimony also failed to establishthat it was customary for the school board tochange extra-duty assignments during a contract

term without the consent of the teacher when suchchange resulted in a lower salary. Since the appel-late court held the contract indivisible, it followedthat the school board had breached the contract byreducing the teacher's salary.

With this conclusion, the question then be-came what damages were proper. The trial courthad ordered the teacher reinstated for the balanceof the contract term and ordered the school dis-trict to pay damages for the one year that he wasnot employed by the district. In first consideringthe reinstatement issue, the appellate court notedthat two statutes applied, depending on the size ofthe district. In large districts the fair dismissal lawwas applicable. In districts the size of the one here,the teacher was entitled to a three-year contract atthe end of the probationary period during whichhe could not be dismissed except for statutorycause. Reinstatement was specifically mentioned asthe remedy for a wrongfully discharged teacher ina fair dismissal district, but the statute applicablein this instance provided that for a breach of con-tract the teacher had his "ordinary legal remedies."From this the appellate court concluded that rein-statement was not available in this instance. In-stead the teacher would be entitled to monetarydamages.

The final problem concerned the amount ofdamages awarded by the trial court. During the1969-70 school year the teacher served as a substi-tute teacher in another school district. That districthad offered him a contract at a salary of $13,000which he had refused to accept. His reasons forrefusing were that since he was suing for reinstate-ment, he was of the opinion that he must remainavailable to perform his contract with the defen-dant district. The board conceded this as a justifi-able reason for rejecting the offer, for this wouldhave been a waiver of the teacher's demand forreinstatement, but argued that if the teacher wasnot entitled to reinstatement, the damages shouldbe related to what he could have earned under thatoffer. Although the appellate court ultimately heldthat the teacher was not entitled to reinstatement,it said that the issue of reinstatement was a closeand difficult one. Therefore, the appellate courtcould not say that the course of action chosen bythe teacher was unreasonable. Accordingly, hewould be entitled to the difference between whathe would have earned had he not been dischargedand what he did earn as a substitute.

The portions of the trial court decision holdingthat the school district had breached the teacher'scontract and ordering money damages were af-firmed. That portion directing reinstatement wasreversed.

27

Texas

Cummins v. Board of Trustees of the EavesIndependent School District468 S.W. 2d 913Court of Civil Appeals of Texas, Austin,June 9, 1971.

A high-school English teacher sued the schooldistrict for specific performance of her contract orfor damages for breach of contract or deprivationof constitutional rights. At the trial the school dis-trict argued that the teacher had not exhausted heradministrative remedies of appeal to the state edu-cation authorities. The trial court agreed and up-held the school district. The teacher appealed.

The teacher's contract contained a clausespecifying that notice of nonrenewal for the1970-71 school year would be furnished by April1, 1970, and if notice was not given by that date,the school board should be deemed to have electedto employ the teacher for the next school year.Despite this language, the school board voted onApril 30, 1970, not to renew the contract andnotified the teacher of this action on May 4, 1970.The contract also provided that upon written re-quest the teacher would be entitled to a hearing atwhich the reasons for the action would be given.The teacher requested a hearing which was held onJune 15. At the hearing the school board refusedto go into the question of whether notice of non-renewal had been timely, and limited the hearingto its reasons for the action. Following the hearing,the board voted to reaffirm its previous action notto renew the contract.

At issue before the appellate court waswhether the teacher was entitled to bring thisaction without exhausting her administrativeappeal remedies. The appellate court observed thatthe contract was substantially identical to thestatute pertaining to probationary contracts. Whilethe statute is not mandatory and must be adoptedby each individual school district, the court foundno evidence that the school district had notadopted the code. Having chosen to employ theteacher under a probationary contract which faith-fully tracks the terms of the statute, the schoolboard was bound thereby. The appellate court con=chided that the school board had not compliedwith the terms of the contract that were clear andunambiguous, and, therefore, there was no issue offact involved and no requirement of exhaustingadministrative remedies if any were available to theteacher. The court construed the provision in thestatute that the board decision is final and non-appealable as prohibiting only appeals to state

administrative authorities and as not denyingindependent suits for breach of contract or depri-vation of constitutional rights. Otherwise, the pro-vision would be unconstitutional, and the samecould be said for similar provisions in the contract,for without recourse to the courts, the teacherwould be without a remedy.

Having concluded that the case should be re-versed'and remanded for a trial on the merits, thecourt commented on the school-board claim ofsovereign immunity. That immunity, the courtsaid, applied to actions in tort. This was a contractaction, and, therefore, the school board could besued.

TENURE

Tenure Teachers

THE CASES comprising this section fall into two categories, those in whichthe teacher has tenure, and those in which the presence or absence of tenureis at issue.

Alabama

Mills v. Birmingham Board of education449 F.2d 902United States Court of Appeals, Fifth Circuit,September 17, 1971; rehearing and rehearingEn Banc denied, November 8, 1971.

(See page 83.)

Arkansas

Downs v. Conway School District328 F.Supp 338United States District Court, E.D. Arkansas,June 23, 1971.

A discharged elementary-school teacher suedthe school district, alleging that her constitutionalrights had been violated and seeking declaratory.'and injunctive relief and damages.

The court found as fact that the teacher hadover 25 years' experience in Arkansas publicschools and had been employed by this school sys-tem since December 1966. During the 1967-68school year, a water fountain in the teacher'ssecond-grade class broke. Some weeks later when ithad still not been repaired at a time when the tem-porary water supply (a plastic bucket with cups)she had provided was exhausted and needed refill-ing, the teacher, during art class asked her pupils todraw pictures of the other pupils and express in thepicture how each one felt. Some of the pupils drewpictures of other pupils lying down asking forwater and of wilted flowers. The teacher showedsome of these drawings to the principal but did notdisseminate them further. Some pictures did comeinto the hands of the superintendent of mainte-

29

nance, but the superintendent of schools was notaware of them until October 1969.

During the entire period of the teacher's em-ployment in the district there was an open incin-erator in the school yard. The teacher had com-plained to the principal numerous times about thesmoke and ashes that were seeping into her class-room and causing physical discomfort to her andthe children in her class. Complaints were alsomade to the superintendent, and the teacher andher husband offered to pay the cost of trash re-moval; this was declined by the superintendent.The incinerator also constituted an attractive nui-sance to the children, and overflowing debris was ahazard on the playground. Unknown to the teach-er, mothers of pupils also complained to the super-intendent. In April 1970, the teacher again com-plained about the incinerator and was told by thesuperintendent that she was the only teacher tocomplain. Feeling that she may have been wrong inher protests, the teacher wrote notes to the otherteachers in the school, asking whether the incin-erator was objectionable to them. One teacher didnot reply and when reminded once or twice, com-plained to the superintendent about this teacher.

As to the other facts in the case, in January1970, during class instruction on the nutritionalvalue of foods, after noting that raw carrots weremore nutritious than cooked carrots, one pupilasked if she might write a letter to the superin-tendent of the school lunch program, asking thatraw carrots be served at times instead of cookedcarrots. Since the children's workbook instructedthem in writing this type of letter and because itwas the child's own idea, the teacher allowed theletter to be written and signed it at the request ofthe pupils. When the matter came to the attentionof the superintendent, he charged the teacher withgoing over his head and violating school policies,

30

and for the first time told the teacher that he knewof the drawings made when the water cooler wasbroken. The teacher told him that she had no in-tention of going over his head and that she did notfeel that she had violated school policies.

Although the teacher's principal had recom-mended her for contract renewal, her contract wasnot renewed. The reasons given were (a) insubordi-nation, (b) lack of cooperation with the adminis-tration, and (c) teaching second-graders to protest.The court found no evidence to support any of thecharges and found as fact that the superintendentdemanded blind obedience to any directive,whether illegal, unconstitutional, arbitrary, or ca-pricious, and that he gave and interpreted schoolpolicies in such a manner as to deny teachers andpupils their constitutional rights. The court notedthat there was a school policy barring the circula-tion of petitions without the approval of the super-intendent. The intention of this policy was to pre-vent classroom disruption. This policy was inter-preted by the superintendent to mean all corre-spondence, petitions, and requests unless they hadhis blessing prior to circulation. The court said thatthis amounted to total censorship. The superin-tendent had determined that the teacher violatedthis policy by allowing the letter requesting rawcarrots to be written and showing the children'scartoons to the principal. The court found boththese activities to be completely reasonable and inkeeping with the prescribed curriculum.

The third charge against the teacher, writing tothe other teachers concerning the incinerator, wasthe principal complaint of the superintendent. Thecourt found that it was the position of the superin-tendent that the teacher could either live with theincinerator or resign. Either alternative, the courtsaid, would violate the teacher's moral, if not legal,duty to protect the health and welfare of herpupils. In her effort to have the hazard eliminated,the teacher at all times worked through channels inaccordance with school policy. The court said thatwhen "a School Board acts, as it did here, to punisha teacher who seeks to protect the health andsafety of herself and her pupils, the resulting intim-idation can only cause a severe chilling, if notfreezing, effect on the free discussion of more con-troversial subjects."

The court found it unnecessary to discusswhether the teacher had been given sufficient pro-cedural due process in light of its holding that sub-stantively the action taken by the school districtwas unconstitutional. The court ordered the teach-er reinstated to her position and compensated forher lost wages for the 1970-71 school year, as wellas full court costs and attorney's fees.

30

California

Blodgett v. Board of Trustees, Tamalpais UnionHigh School District97 Cal.Rptr. 406Court of Appeal of California, First District,Division 2, September 2'2, 1971.

A high-school physical education teachersought a writ of mandate directing the school dis-trict to re-employ her. The lower court denied thewrit and the teacher appealed. The parties agreedthat the sole reason for the nonrenewal of her con-tract was the recommendation of the principal thather overweight condition rendered her unfit forservice.

The teacher had served as a substitute in thedistrict prior to being appointed to a full-time posi-tion for the 1966-67 school year. The school prin-cipal and the department chairman had taken herweight into consideration when recommending herappointment. The teacher was evaluated twice dur-ing her initial year of employment and receivedhighly favorable reports. No mention was made ofher weight. Later the principal did discuss thematter with her, and she agreed to sec a doctor. Atthe time she was notified that she would not bere-employed, she was under a doctor's care and wasbeginning to lose weight. The notification of non-renewal stated that her physical condition renderedher unfit to instruct. Specifically it stated that theteacher was unable to serve as a model of healthand vigor to the girls in her class and that she wasrestricted in her ability to perform or teach aspectsof the physical education program. A hearing of-ficer made findings to this effect which the boardadopted. It was conceded that there is no require-ment that physical education teachers be able todemonstrate any particular course, and it was alsoadmitted that the teacher was able to control herclasses. Much evidence was introduced, includingtestimony from parents of girls in her classes as tothe teacher's effectiveness and rapport with herstudents. The teacher's doctor testified that withthe aid of medication she was taking she wouldcontinue to be able to diet successfully,

The court noted that by statute discharge ofthe teacher could be for cause only and that thecause must relate solely to the welfare of theschools and the students. On a review of the evi-dence, the court said that while the teacher wasoverweight, it had not been shown that this signifi-cantly impaired her ability to demonstrate varioussports. The court noted that the record was repletewith testimony to the effect that physical educa-tion teachers need not excel at demonstration toperform their instructional duties competently and

well. There was evidence that student demonstra-tors arc equally or more effective and that otherteachers at the high school did little or no dem-onstrating.

As to the complaint relating to the teacher'simage as a model of health and vigor and testimonythat some of the students had laughed at the teach-er because of her weight, the court said that therelevance of this as bearing on the teacher's effec-tiveness was never shown. The court also found itnoteworthy that the teacher weighed less at thetime she was told her contract would not be re-newed than she did when the second favorableevaluation was made by the principal.

The instant case, the court said, involves asituation where a physical condition unrelated tofitness to teach was used as a pretext for refusingto rehire the teacher. In conclusion the courtquoted from a New York case with similar facts,that "obesity, standing alone, is not reasonably andrationally related to the ability to teach or to main-tain discipline." The judgment of the trial courtwas reversed and the writ directing the school dis-trict to re-employ the teacher was issued.

Board of Trustees of the Compton JuniorCollege District v. Stubblefield94 Cal.Rptr. 318Court of Appeal of California, Second District,Division 2, April 20, 1971.

On March 4, 1969, a tenured junior-collegeteacher was suspended and notified of the board'sintention to dismiss him after 30 days. The chargewas immoral conduct and evident unfitness toteach. The teacher demanded a hearing, which theboard held. Subsequently, pursuant to law theboard filed a complaint in the superior court re-questing that the court inquire into whether or notthe charges made against the teacher were true, andif so, whether or not the charges constituted suffi-cient grounds for dismissal. The trial court foundthat the charges were true and that they consti-tuted sufficient grounds for dismissal. The teacherappealed from this judgment.

The principal contention on appeal was thatthe charges did not constitute sufficient ground fordismissal. Although there was some conflict in theevidence, the trial court had found that a deputysheriff had spotted the teacher's car parked on anunlighted side street, and thinking it abandoned,went to investigate. The teacher was in the car witha female student, both in a state of undress. Afterthe deputy identified himself, the teacher shoutedat the deputy, started the car, and accelerated

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rapidly, knocking the deputy down and causinghim minor injuries. The teacher then drove away ata high speed. The deputy pursued the teacher athigh rates of speed until the student persuaded theteacher to stop the car.

In considering whether the trial court's con-clusion that the conduct of the teacher was suffi-cient grounds for dismissal, the appellate court saidthat at a minimum, responsible conduct on thepart of a teacher, even at the college level, excludesmeretricious relationships with his students andverbal and physical assaults on duly constitutedauthorities in front of his students. The teachercited Morrison v. State Board of Education, con-tending that this case prohibited his discharge be-cause the evidence against him concerned only hisconduct and did not expressly show how that con-duct rendered him unfit to teach. In Morrison thecourt had held that a teacher's certificate could notbe revoked on the basis of a single noncriminalprivate act of a homosexual nature committedthree years previously with a consenting adult,without a showing that he was unfit to teach. Theteacher in the instant case argued that he had notbeen proven unfit to teach and, therefore, couldnot be dismissed under the doctrine enunciated inMorrison. The court disagreed, noting that thecases were distinguishable on their facts. The courtfound substantial differences between the cases interms of lapse of time between the conduct andthe discharge, the locales where the conduct oc-curred, and the status of the parties involved.

The appellate court said the clear import ofMorrison was that a teacher may be discharged orhave his certificate revoked on evidence that eitherhis conduct indicates a potential for misconductwith a student or that his conduct has gained suffi-cient notoriety to impair his on-campus relation-ships. While in this case the court found no directevidence of notoriety, the court did say that "thevery fact that a police officer, in the course of hisofficial duties, easily discovered Idle teacher] andhis companion, demonstrates the tenuous securityfrom public attention provided by the front seat of[the teacher's] automobile." Finally, the courtsaid, "unfitness to teach" in terms of an indicationthat the teacher was "more likely than the averageadult male to engage in any untoward conductwith a student" could be inferred from the con-duct itself.

The appellate court concluded that the find-ings of the trial court were amply supported by theevidence. Further, the appellate court made thespecific finding that the conduct of the teacherconstituted immoral conduct which .indicated un-fitness to teach. The judgment was affirmed.

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Colorado

Draper v. School District No. 1, City andCounty of Denver486 P.2d 1048Supreme Court of Colorado, In Department,June 28, 1971.

An elementary-school principal who was re-assigned as a classroom teacher at a lower salarybrought suit against the school district to reinstateher as a principal with commensurate pay. Prior tothe trial, the teacher sought to join additionaldefendants and to file an amended complaint. Thetrial court refused to allow this procedure andgranted the motion of the school district for sum-mary judgment. The teacher appealed.

The first argument on appeal was that it waserror for the trial court not to allow the additionalparties to be added, specifically the Denver Class-room Teacher's Association (DCTA) which theteacher alleged had played a large part in herdemotion. The appellate court disagreed with theteacher's contention and noted that the caseagainst the district involved only questions of lawon interpretation of the teacher tenure law. whilethe case against DCTA involved factual questions.As such, the joining of additional defendants wasnot necessary to a resolution of the case against thedistrict and permission for joinder was within thediscretion of the trial court.

The next argument of the teacher was that thetenure law had been violated since she was trans-ferred without a hearing. The appellate court dis-agreed, since under the statute a hearing is neces-sary when tenure teachers are dismissed from theirpositions as teachers, and a school board maytransfer a teacher to another position without achange in salary "except that a teacher who hasbeen occupying a position of an executive or ad-ministrative nature, may, if deemed unsatisfactoryin such a position be returned to regular classroomteaching at the regular salary figure to which hewould have been entitled had he not occupied theadministrative or executive position." The appel-late court pointed out that the statute does notprovide tenure in an administrative position, andthat the teacher had tenure only as a teacher andnot as a principal. Further, there was no statutoryprovision for notice and hearing when a teacher isreturned from an administrative position to ateaching position. Therefore, the school districthad the authority to transfer the teacher in thiscase without a hearing. The decision of the trialcourt in favor of the school district was affirmed.

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School District No. Fifty of Adams County v.IVitthaus490 P.2d 315Colorado Court of Appeals, Div. II, August 24,1971; rehearing denied September 28, 1971.

The school district appealed from the decisionof the trial court directing it to reinstate a high-school teacher who had been dismissed. Her prin-cipal had recommended the dismissal, and onMarch 28, 1967, the board decided to entertain thecharges and sent a letter to the teacher informingher of this fact. As provided by statute, she re-quested a review panel to hold hearings on thecharges. In May 1967, the hearing was held beforea three-member panel which filed a report with theboard recommending the teacher's dismissal. Theboard agreed with the report and terminated theteacher's employment. The teacher appealed to thedistrict court. After a trial held in court in June1969, the court ordered that the teacher be rein-stated. This appeal by the school board followed.

Under state law, once the hearing panel isestablished, evidence proving the charges must bepresented, and the teacher must be given an oppor-tunity to rebut and offer evidence on her ownbehalf. At the conclusion of such hearing, the lawprovides that the panel "shall report its findingsand conclusions to the members of the board orcommittee. The board or committee shall thenmake decision with regard to the recommendationsof the panel." In this instance, although an exten-sive hearing was held before the panel, its reportconsisted of cursory remarks affirming dismissal bytwo of the three panel members. Based on thesestatements, the school board terminated the teach-er's employment.

The appellate court held that it was not withinthe authority of the panel to terminate the teach-er's employment. Rather, its sole function was toreview the evidence presented, make findings andconclusions, and report the same to the board. Theboard is then to make an independent evaluationof the proper course of action to take, either con-curring with or rejecting the panel's recommenda-tions. In this instance, the court found it apparentfrom the record that no independent judgment bythe school board was exercised. The cursory reportof the panel, the court said, merely stated a conclu-sion that the employment should be terminatedwithout setting forth facts, evidence, and findingsused to reach that conclusion. Because the boardhad failed to comply with the proper proceduralsteps in terminating the teacher, the appellatecourt ruled that the board action was a nullity.Therefore, it affirmed the trial court decision and

directed that the teacher be reinstated as of thedate of the attempted termination.

Florida

Beckwith v. Board of Public Instruction ofDade County247 So.2d 508District Court of Appeal of Florida,Third District, April 27, 1971; rehearing deniedMay 26, 1971.

A teacher brought a class action for a declara-tory judgment on behalf of himself and of all otherteachers who claimed similar rights, that he wasentitled to a continuing contract for the 1967-68school year. The trial court ruled that he was notentitled to a continuing contract and the teacherappealed.

Prior to July 1, 1967, state law required thatfor a teacher to be eligible for a continuing con-tract he must have graduated from a four-year col-lege, completed a three-year probationary period,have been reappointed for the fourth year, andhave received a passing score on the NationalTeachers Examination (NTE). The law was amend-ed in 1967 to delete the NTE requirement. As ofJuly 1, 1967, the teacher in this case had com-pleted all of the requirements except the NTEscore. He claimed that as of the effective date ofthe amendment, July 1, 1967, lie was automati-cally entitled to a continuing contract. The board,however, claimed that to receive a continuing con-tract for the 1967-68 school year, all of the re-quirements had to be met by June 30, 1967, andsince the examination was still required as of thatdate and the teacher had not passed it, he was notentitled to .a continuing contract for 1967-68.

The question on appeal was whether the inter-pretation of the statute made by the administrativeauthority and adopted by the trial court was clear-ly erroneous. Sustaining the decision below, theappellate court held that the interpretationadopted was supported by the language in the stat-ute. Therefore, the teacher was not entitled to acontinuing contract for 1967-68. However, since asof July 1, 1967, the teacher had completed all ofthe requirements for continuing contract status, hewas entitled to that contract as of July 1, 1968.

Board of Public Instruction of Dixie Countyv. Locke243 So.2d 6District Court of Appeal of Florida, FirstDistrict, December 29, 1970.

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The board of public instruction appealed froman adverse decision directing it to pay to a teachersalary for a portion of the 1968-69 school year.The teacher had taught in the school system from1957-58 through the 1959-60 school year. Heaccepted a contract for the 1960 -61, school yearbut limited to about January 7, 1961, when he wasto assume the duties of the office of superin-tendent. On that contract the word teacher hadbeen stricken out and elementary principal substi-tuted. The trial court determined that there was noright to a continuing contract as principal but acontinuing contract as a teacher did exist. In Janu-ary 1969, when his successor took office as super-intendent, the teacher sought to be re-employed bythe school district. There were no principalshippositions vacant, and the teacher vacancy was onefor which the teacher was not certified. State lawprovides that service as superintendent shall beconstrued as continuous teaching service in thepublic schools.

The trial court held that the teacher had avalid continuing teacher contract and that theschool board was in error in not employing him asa teacher even though in a position for which hewas not certified, because the board had done sofor other teachers when certified teachers wereunavailable. The trial court held that under suchcircumstances the teacher was entitled to paymentof his salary from January 7, 1969, to the end ofthe 1968-69 school year in accordance with hiscontract of continuing employment as a teacher,his certificate, and the district salary schedule. Theappellate court agreed with the conclusions of thetrial court and affirmed the opinion.

Evans v. Polk County School Board249 So.2d 725District Court of Appeal of Florida, SecondDistrict, July 2, 1971.

A teacher suspended on grounds of willfulneglect of duty and incompetency sought a decla-ratory judgment that she was entitled to have thehearing officer rule on matters of law as to thecharges against her. The trial court entered anadverse judgment and the teacher appealed.

The trial court had held that the teacher hadbeen "informed with reasonable certainty of thenature and accusation against her and has had rea-sonable opportunity to defend against attemptedproof of such charges, and there is no proof beforethis Court that would show that the proceedings todate before the defendant Board and before theHearing Examiner have not been conducted in afair and impartial manner, free from any suspicionof prejudice, unfairness, fraud or oppression."

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The appellate court believed that the trialcourt committed no error in this ruling. Accord-ingly, the judgment was affirmed.

Ford v. Bay County School Board246 So.2d 119District Court of Appeal of Florida, FirstDistrict, December 3, 1970.

A teacher sought review of the decision of thecounty board of education discharging her and thedecision of the state board of education affirmingthe school-board action. The teacher had been em-ployed, in the district for about 19 years. On week-ends she was accustomed to driving to another cityto help her mother operate a liquor store whichhad been in the family for years. On September 30,1967, agents of the state beverage departmentcame into the store and claimed to have found alottery ticket and various other gambling para-phernalia. The teacher was placed under arrest andcharged with the possession of a lottery ticket.

On October 6, 1967, the county assistantsuperintendent of schools sent a letter to the teach-er informing her that he had been notified by thebeverage department of the charges against her andthat she was suspended from her teaching positionuntil such time as the school board could takeaction on her case. On October 11, 1967, theschool board confirmed the teacher's suspension,pending the disposition of the charges against her.Ultimately on December 16, 1968, the criminalcase against the teacher was dismissed for lack ofevidence on the request of the beverage depart-ment.

On May 5, 1969, the teacher wrote to theschool superintendent requesting a speedy hearingof the charges, if any, pending against her. Thesuperinttndent replied on June 4, 1971, stating thecharges against her and setting the hearing for June26, at which time she would be given an oppor-tunity to present any evidence on the charges. Atthe hearing the teacher presented witnesses andtestimony on her own behalf. However, on August26, the board voted to sustain the charges onwhich the teacher was originally suspended and todismiss the teacher. The state board of educationaffirmed this action.

On appeal, the teacher contended that she wasdenied due process of law by the failure of theboard to serve written notice of the time and placeof the hearing as required by statute and that theproceedings of the board at the hearing were notcompletely impartial since the school-board attor-ney also served as the prosecutor. With respect tothe lack of notice the court noted that a hearing on

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a suspension is required only if the teacher so re-quests. In this case the teacher's request was madeover a year and a half after her suspension and theboard promptly replied with written notice of thecharges and notice of the hearing. The board fullycomplied with the terms. of the statute, the courtsaid, and the teacher could not complain of herown lack of diligence in requesting a hearing.

Concerning the second contention of theteacher, that the attorney for the board acted asprosecutor, the court pointed out that he did notproffer legal advice during the hearing nor was hepresent when the board reached its final judgment.Nor did the teacher at the hearing raise any objec-tion to the procedure. An examination of therecord led the court to conclude that the pro-ceedings were conducted in a fair and impartialmanner.

The last contention of the teacher was that shewas discharged without the local school boardmaking specific findings of fact based upon theevidence adduced at the hearing which sustainedthe charges against her. The court agreed with thisargument, since under previous Florida cases, "[a]final order of a county school board terminating ateacher's contract of employment which iscouched in such general language as to amount tonothing more than a verdict of 'guilty as charged' isinsufficient.!' The Administrative Procedure Actand due process of law, the court said, dictate thatthe agency's final action be reduced to writing andcontain findings of fact based upon the evidencebrought out at the hearing. For this failure, theaction of the board was reversed and the case re-manded to the board for the entry of an appro-priate final order setting forth the findings of factfound from the evidence adduced at the hearing.

Ford v. Bay County Board of Education253 So.2d 728District Court of Appeal of Florida, FirstDistrict, October 28, 1971.

(Sec case immediately above.)

Following remand to the school board, theboard found that the teacher did own and/oroperate the liquor store, that she was in possessionof illegal gambling paraphernalia, and that she wasengaged in an illegal gambling operation contraryto state law. The teacher again sought court review,charging that the board's findings were not sup-ported by substantial evidence.

After giving careful consideration to therecord, the court concluded that there was com-petent, substantial evidence to support the findings

and action of the school board, and no abuse ofauthority on the part of the board was shown. Thedecision dismissing. the teacher was accordingly af-firmed.

Smith v. Board of Public Instruction of PinellasCounty, Florida438 F.2d 1209United States Court of Appeals, Fifth Circuit,March 2, 1971. Certiorari denied, 92 S.Ct. 61,October 12, 1971.

Because of decreasing attendance and risingcosts, the Skyway campus of St. Petersburg JuniorCollege was closed in 1967, and its activities weremerged into the other two campuses in the system.Nineteen of the 31 black teachers and four of theeight white teachers at Skyway were reassigned tothe remaining schools. Seven of the 12 black teach-ers not immediately reassigned brought suit al-leging that they were not re-employed because oftheir race and contrary to the state teacher tenurelaws. Subsequently six of the seven were offeredand/or accepted re-employment within the countyschool system.

The trial court held that the evaluation pro-cedure followed for the selection of teachers to betransferred to available positions on the other twocampuses "was honestly and fairly conducted byqualified professionals acting in a professional way,who were not motivated or influenced by racialconsiderations. The procedures comport with con-stitutional standards and the law."

The teachers appealed, contending that thetrial court had not e;:ercised its jurisdiction todetermine if the Florida teacher tenure laws wereviolated. The applicable tenure laws provided forcriteria to be used when a reduction in force wasnecessary. The appellate court held that the trialcourt had applied the plain words and clear intentof the tenure statutes, and that its findings wereabundantly supported by the record. Accordingly,the decision was affirmed.

The Supreme Court of the United Statesdenied a writ of certiorari for a review of this deci-sion.

Iowa

AlcCuffin v. Willow Community School District182 N.W.2 d 165Supreme Court of Iowa,December 15, 1970.

A discharged teacher appealed from the lowercourt grant of summary judgment in favor of theboard of education. The teacher brought suit in

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June 1969, alleging a breach of contract by theboard by dismissal without notice and a hearing asprovided by law.

The teacher was employed for the 1968 -69school year under a contract providing for duties aselementary and secondary art teacher, boys' wres-tling coach, and extracurricular duties as assignedby the administration. Under state law, teachingcontracts continue automatically unless modifiedor terminated by mutual consent or unless theteacher is terminated for cause after notice and ahearing. On March 10, 1969, the teacher was givena contract for the 1969 -70 school year at an in-creased salary. Subsequently, on April 21, 1969,the teacher received a letter from the superin-tendent informing him that the superintendentconsidered his attitude toward the rules of theschool district to be insubordination and that hefelt that this was grounds for dismissal under statelaw.

Three days later at a special meeting of theschool board the attitude of the teacher was dis-cussed, and two motions were passed. The firstoffered to pay to the teacher the balance of his1968 -69 contract and to end his tenure as an artteacher on April 25, 1969, if he would resign his1 9 69-70 contract. The second resolution providedthat if the teacher did not accept this offer, hewould be notified, according to law, of a meetingto be held relative to the accusations against him.

A conference was then held between the teach-er and the president of the school board at whichthe teacher was asked to resign in exchange for alump-sum payment with no duties to perform tothe end of the school year. The teacher refused andreported to school the next day prepared to teach.He was told by the superintendent that his artclasses were cancelled for that day. The teacheralleged that he was prevented from teaching afterApril 25, 1969. However, no claim was made thatsuch action was at the direction of the schoolboard. Subsequently the teacher was sent a noticeof termination setting forth August 1, 1969, as thedate for a hearing. The teacher did not appear andwas dismissed for cause by the board.

The present suit involved an alleged anticipa-tory breach of contract with the teacher con-tending that he was discharged on April 25, 1969,by theaction of the superintendent in telling himthat his classes were cancelled. On the other hand,the school district alleged that the teacher was notdischarged until after the board hearing on August1, 1969, that no action was taken prior to thattime although discharge was contemplated, thatthe teacher received his regular paychecks for thebalance of the school year, that the teacher was

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not officially relieved of his duties prior to thehearing, and that at the time this action was begun,the teacher had not been discharged.

The appellate court agreed with the trial courtthat the teacher had not been discharged prior toAugust 1, 1969, and that his failure to pursue hisadministrative remedies by appealing his dismissalon that date was fatal to his court suit.

Pointing out that state law governs a teacher'scontract of employment, the court said it couldfind no method of discharge other than that speci-fied in the law, namely, by majority vote of theboard. Therefore, it must be assumed that a dis-missal other than by school-board action was inef-fective. The action of the superintendent in can-celling the teacher's classes could not be effectiveto dismiss that teacher, and the teacher knew orshould have been aware of this when he was givencopies of the board action stating that before hisduties were officially terminated, he would begiven notice and a hearing according to law. Theteacher's contract also provided for duties otherthan as an art teacher so that even if the superin-tendent had relieved him of his art classes, he wasstill subject to assignment elsewhere.

The court concluded that the teacher's con-tract was not anticipatorily breached by the schooldistrict, that his lawsuit was premature and bybringing it the teacher could not avoid the effect ofa later dismissal under state law, since the teacherdid not appear at the August 1, 1969, hearing orpursue his administrative remedy of appeal of thedecision reached by the board at the hearing. Thetrial court correctly granted the motion of theschool board for summary judgment, and that deci-sion was affirmed.

Louisiana

Cornist v. Richland Parish School Board448 F.2d 594United States Court of Appeals, Fifth Circuit,September 17, 1971.

A black tenured public-school teacher broughta federal civil rights action alleging that her termi-nation was racially motivated. The district courtfound that the teacher, who had been with theschool system for about 27 years, was terminatedfor reasons other than desegregation and sheshould have exhausted her state administrativeremedies prior to bringing the federal court suit.Therefore, the court held that it did not have juris-diction and dismissed the suit. The teacher ap-pealed.

Prior to her discharge the teacher had receiveda letter from the school superintendent stating that

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she was doing an "excellent job" and asking thatshe continue to teach in the 1970-71 school year.The problem resulting in the teacher's dischargewas that she had received material from the U.S.Department of Health, Education, and Welfare en-titled Integration and Desegregation containing aphonograph record explaining how to approachproblems resulting from desegregation. She playedthe record for her class, using the bulletin tosupplement the record. The following day therecord was seized by a school official, Two dayslater she was summoned to the superintendent'soffice and reprimanded, and was told that sheshould be severely punished for playing the record;further if it were discovered that she ordered therecord from m H.E.W., she would be fired. Shortlythereafter the teacher was ordered off campus.Subsequently, she was told the board had voted toterminate her contract and that she was entitled toa hearing. A short time later she received a noticethat the charges were withdrawn and that she wasto resume her teaching duties. However, six dayslater she was notified that she was suspended andthat a hearing would be conducted. Following thehearing, the board voted to terminate the teacher'sservices.

The state teacher tenure statute which pro-vides for a hearing also provides in part that ateacher may be dismissed for "advocating or in anymanner performingany act toward bringing aboutintegration of the races within the public schoolsystem." The statute additionally provides that ateacher found guilty after a hearing may petition astate court for a review of that action.

The only issue before the appellate court waswhether the teacher was required to exhaust herstate remedies prior to bringing this action. Theappellate court found the law well settled to thecontrary and ruled that the teadvr's complaint"clearly states a cause of action peculiarly lendingitself to the invocation of federal jurisdiction,"considering that this case is not one which involvesthe untangling of state law before the federal casecould proceed. Under the circumstances, the fed-eral district court should have exercised jurisdic-tion. Therefore, its decision was reversed, and thecase was remanded for a hearing on the merits.

Pardue v. Livingston Parish School Board251 So.2d 833Court of Appeal of Louisiana, First Circuit,August 6, 1971; rehearing deniedSeptember 14, 1971.

A guidance counselor appealed from the lowercourt decision dismissing her suit. After having

been a guidance counselor since the fall of 1966,she was reassigned as an English teacher for the1970-7 1 school year. She charged that this was ademotion in violation of the state teacher tenurelaw.

Although the salaries for the two positions arethe same, to serve as a guidance counselor, onemust have a teacher's certificate, three years' teach-ing experience, a master's degree, and 15 hours ofinstruction in guidance counseling. To serve as anEnglish teacher requires only a certificate in thatfield. There was no complaint about the teacher'sperformance. The reassignment was solely becauseof a federal court order mandating faculty integra-tion in the school district.

The teacher maintained that she was illegallydemoted, while the school board argued that therewas no difference between the two positions, andtherefore, no demotion. Under provisions of thetenure law, to demote a teacher the board wouldhave to have valid cause expressed in writing for aprobationary teacher and written and signedcharges and a hearing in the case of a tenuredteacher. Since none of the statutory requirementswas fulfilled, the court found it unnecessary todetermine if the teacher was tenured or not.

While a transfer to a position of the same sal-ary and status would not be a demotion and wouldbe permissible, in this instance the court foundthat the status of the two positions was not thesame. It was evident to the appellate court thatsince the minimum educational requirements ofthe position as guidance counselor were higherthan those for a teacher, a guidance counselor mustenjoy higher professional standing even though thesalaries of the two positions are the same. Thecourt held that the transfer was a demotion to aposition of lesser professional standing attemptedwithout compliance with the tenure law. There-fore, the court reversed the decision of the trialcourt and enjoined the school board from trans-ferring the teacher.

Maine

Beattie v. Roberts436 F.2d 747United States Court of Appeals, First Circuit,January 6,1971.

A discharged tenure teacher appealed fromdecision of the district court granting summaryjudgment in favor of the Windham school system.The teacher had been employed by the system forfive years when the school committee voted not torenew his contract. The teacher requested and was

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granted a list of reasons for the nonrenewal and ahearing before the school committee. At the hear-ing both parties were represented by counsel;witnesses were present, and a stenographer record-ed the proceedings. The teacher's counsel raisedseveral procedural objections because the hearingwas not public, because the witnesses were sequest-ered, and because he was denied permission to

cross-examine committee members. The committeerefused to sustain these objections. The teacherthen refused to participate further in the pro-ceedings.

The teacher then brought suit under the fed-eral civil rights act, alleging a denial of due process.The district court held that the teacher had beenafforded due process and that he had failed toexhaust his administrative remedies prior to bring-ing suit. The teacher appealed from this decision.

While ordinarily persons bringing suit underthe civil rights act are required to exhaust theiradministrative remedies first, the defense of failureto do so could not be asserted by the school offi-cials if they had short-circuited the teacher's statu-tory procedural rights. In this instance the teacherasserted that his procedural rights had been violated in two ways. First, the teacher read the ap-plicable statute to require that the superintendentnotify the teacher prior to the time that he recom-mended dismissal to the school committee. The ap-pellate court found no basis in the statute for theteacher's interpretation. The court observed thatthe statute plainly required that the teacher begiven notice "that his contract is not going to berenewed," not notice that the superintendent hasrecommended nonrenewal. The language of thestatute, the court said, contemplates action by theentire committee before the teacher is notified.

The second procedural error alleged by theteacher was that he was not given an adequatestatement of the reasons for nonrenewal, as requir-ed by the statute. He protested that the list ofreasons came from the committee's attorney andnot from the committee. The court found that theteacher was clearly put on notice of the chargesagainst him. In view of the manner in which thehearing before the committee was conducted, in-cluding a stenographic record, the court could seeno justification for the teacher's refusal to followthe proceedings through to the end.

Alternatively, the teacher claimed that the pro-cedure was constitutionally objectionable becausethe hearing was not held before a neutral decision-maker. This argument was presented for the firsttime on appeal. The appellate court said that not-withstanding the obvious inappropriateness of con-sidering an issue neither pleaded nor argued in the

3i1

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district court, it might on rare occasion considerthe issue if the facts clearly pointed to a depriva-tion of constitutional rights. However, the appel-late court did not find this to be the case here.State law did not require a neutral decision-maker,and the court was unwilling to impose this require-ment on the state or municipalities because, in itswords, "we would be engrafting into educationaladministration an appellate layer of enormouscomplexity, and might well exceed the boundariesof our judicial authority and trespass into legisla-tive territory."

Furthermore, the appellate court said that theteacher's "dual failures to exhaust his administra-tive remedies and to present the issue to the dis-trict court have foreclosed any analysis of theworkings of the present Maine procedures, an ex-ploration we would deem essential to any sensiblebalancing of the interests of tenured teachers andschool committees." The decision of the districtcourt in favor of the school committee was af-firmed.

Dunham v. Crosby435 F.2d 1177United States Court of Appeals, First Circuit,December 18, 1970.

A high-school teacher brought a civil rightsaction against the superintendent and the membersof the board of directors of Maine School Adminis-trative District Number 34. The teacher allegedthat his employment was terminated during theschool year for reasons and by a procedure thatviolated his constitutional rights. The district courtdismissed the claim and the teacher appealed.

The teacher's employment required a certifi-cate which he did not hold because lie lacked therequisite educational credits. However, in a pre-vious year he had held a conditional certificate thatpermitted him to teach. Renewal of this certificatewas conditioned on obtaining an affidavit from thesuperintendent. The teacher had signed a contractfor the 1969-70 school year and Was teachingninth-grade English, but without his certificatebecause the necessary affidavit had not been signedby the superintendent, apparently due to an over-sight.

For the first two months of the school yearthe teacher was employed without the conditionalcertificate. On October 28, he composed an 'assign-ment sheet listing several themes of Romeo andJuliet for oral and written discussion. The daughterof a school-board member was in his class, and sheshowed the assignment sheet to her father whotook it to a school board meeting that night. The

board asked the superintendent to investigate. Thenext day the teacher was called out of his class bythe superintendent and was told that he couldleave quietly or make a fuss. The teacher was thenfired and paid off. This dismissal was accomplishedby the superintendent making it clear to the teach-er that he would not sign the affidavit needed forthe teaching certificate. When the teacher pro-tested the decision of the superintendent duringthe interview and asked what the school boardthought of the sheet, the superintendent told himthat a hearing before the school board would dohim no good. The teacher requested no hearing.The lower court had found that the failure to signthe affidavit was because of the assignment sheet.

The district court had ruled that there was noevidence that the members of the school board hadconspired to deprive the teacher of his constitu-tional rights. The teacher argued that the board'sauthorization of the superintendent to investigatethe assignment sheet and its subsequent approvalof a contract for the person hired to replace himconstituted a ratification of the superintendent'saction, implicating the board members in the con-spiracy. The district court found the facts to beotherwise. This finding was upheld.

On appeal the teacher added another twist tohis ratification theory. He claimed that the factthat the school board chose to defend the lawsuitby denying that he was legally employed and bycounterclaiming for salary paid to him, constituteda ratification of the superintendent's failure to signthe affidavit; therefore, the board members wereliable to him. As to this claim the court said it wasdoubtful that the civil rights act was applicable forvicarious liability. Furthermore, the teacher pro-duced no evidence that the board had control overthe decision of the superintendent not to sign theaffidavit. Therefore, the appellate court affirmedthe district court's dismissal of the action againstthe members of the board of education.

The appellate court, however, found quite adifferent case against the superintendent. In thelower court the superintendent had argued that theteacher was not fired, but rather that he was neverlegally hired and, therefore, he had no proceduralrights to exhaust. The district court, however,impliedly rejected this theory and ruled that theteacher had failed to exhaust his administrativeremedies. The superintendent then claimed onappeal that procedures were available to the teach-er under state law which he did not exhaust.

Under suite law, the dismissal procedures areself-starting. A teacher need not request a hearing;he can be discharged only after notice and a hear-ing. None of these procedures was complied with

by the defendants. The appellate court said thatthe superintendent could not argue that the teach-er failed to request a hearing when he was auto-matically entitled to one without making a request.Nor could the superintendent rely on the teacher'sfailure to exhaust his administrative remedies whenhe took steps to deny the teacher access to theprocedure. For it was the superintendent who dis-missed the teacher by not signing the affidavitinstead of bringing the case to a hearing be fore theschool board as required by law, and who activelydiscouraged the teacher from seeking a hearing bytelling him that a hearing would do him no good.

Accordingly, the appellate court reversed thedecision of the district court and remanded thecase to that court for proceedings against thesuperintendent alone.

The counterclaim by the board against theteacher to recover the salary paid was dismissed bythe lower federal court without prejudice so thatthe matter could be resolved in state court. Theteacher argued on appeal that the claim shouldhave been dismissed with prejudice. The appellatecourt declined to reverse the district court disposi-tion of the counterclaim but remanded the case forfurther consideration in light of the reinstatementof the complaint against the superintendent.

Michigan

Dodge v. Board of Education of the SchoolDistrict of the City of Saginaw183 N.W.2d 793Supreme Court of Michigan,March 1, 1971.

(See Teacher's Day in Court: Review of 1969, p.26.)

An elementary-school principal was relieved ofher duties and offered an option of employment atthe same pay either as a reading improvementcoordinator or as a classroom teacher. She ac-cep:ed the latter position with objection, and thenbrwAght suit maintaining that she had tenure as aprincipal and, therefore, had been improperlydemoted. The trial court denied relief and the prin-cipal appealed.

The appellate court pointed out that the ex-plicit statutory language provided that if the cm-

.. ployment contract of a tenure teacher in thecapacity o f principal provides that the teacher willnot have tenure as a principal, the teacher will havetenure as a classroom teacher only. Further, thestatute also provided "that the .failure of the boardto so provide in the contract shall be deemed toconstitute the employment of the teacher on con-

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tinning contract in such capacity [principal] " andsubject to the provisions of the tenure act.

In this instance the word "tenure" was strickenfrom the standard printed form contract. Theschool board argued that this was the equivalent ofthe statutorily required provision that the teacherwould not have tenure as a principal. The appellatecourt disagreed and held that the contract mustmake provision for no tenure in order to avoid it.While the court was of the opinion that the schoolboard did not intend to grant the plaintiff tenurein the capacity of principal, the board did not availitself of the only means available under the statuteto avoid it. Therefore, the lower court decision wasreversed, and the principal was ordered restored toher position as elementary-school principal and tothe salary difference between the two positions asof February 1967.

Munro v. Elk Rapids Schools189 N.W.2d 224Supreme Court of Michigan,August 2 7 , 1971.

(See Teacher's Day in Court: Review of 1970, p.39, Review of 1969, p. 27.)

In this case the Michigan E tpreme Court hadpreviously affirmed two lower court decisionsagainst the teacher. This appearance involved a re-hearing of the case.

After completing the two-year probationaryperiod and being rated satisfactory, the teacher wasnot rehired. He argued that, having satisfactorilycompleted the probationary period, he was entitledto tenure. The school board's contention was thattwo separate acts were required, satisfactory com-pletion of the probationary period and appoint-ment to tenure.

On rehearing, the court adopted what hadbeen the minority opinion in the original hearingthat two separate acts were not required and thatonce the teacher had satisfactorily completed theprobationary period he was entitled to tenure.That opinion was not saying that the board lackeddiscretion to retain or not to retain a probationaryteacher. "The probationary period is just thataperiod of proof." Rather, the opinion was saying"that the intent of the entire act [tenure act] wasto eliminate capricious and arbitrary employmentpractices of local school boards. This includes theprobationary as well as the tenure period of em-ployment." ( 178 N.W. 2d 450 (19 7 0)).

In adopting this minority opinion, the Mich-igan Supreme Court ruled that unless the boardnotified a probationary teacher in writing that hiswork was unsatisfactory, upon completion of the

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probationary period he was entitled to tenurestatus with all of its specified rights and privileges.

Runzph v. Wayne Community School District188 N.W.2d 71Court of Appeals of Michigan, Division 1,March 24, 1971; rehearing denied May 11, 1971.

A tenure teacher was granted sabbatical leavefor one school year at half salary for the purposeof foreign travel and research. As a condition ofthat leave he was required to file an interim reportwith the school superintendent at the mid-point ofthe leave. This he failed to do and his salary wassuspended. Upon his return to the United Statesthe teacher met with the school officials. At thismeeting he was informed that he would not beoffered a contract until his legal status was deter-mined. Shortly thereafter he was informed that acontract would not be issued to him for the nextschool year because of the board's belief that hehad breached his sabbatical leave agreement. Theteacher requested and received a hearing before theboard xvhich then upheld the decision not to offerhim another contract. On appeal to the state ten-ure commission and the trial court, the action ofthe board was affirmed. This appeal followed.

The only issue on appeal was whether theteacher's employment was terminated in accor-dance with the state tenure law. The discharge of atenure teacher requires notice, a written statementof the charges, and a hearing. The board admittedthat none of the procedural safeguards was follow-ed, except the hearing, but maintained that be-cause the teacher breached the leave agreement, hewas not entitled to these protections. The boardrelied on a statute which provided that a tenureteacher who discontinued his services except bymutual consent without giving 60 days' noticeprior to September 1 of the ensuing school yearloses his rights to continuing tenure. The trial courthad interpreted this to mean that the teacher, bybreaching the leave agreement, had lost his rightsto continuing tenure, including the procedural safe-guards for dismissal of a tenure teacher.

The appellate court did not accept this inter-pretation of the statute. In its view, the sectionrelied on by the board was intended to preventteachers from leaving school districts immediatelyprior to the beginning of school time, thus leavingthe school board without sufficient teachers ortime to replace them. The interpretation given thissection of the tenure law by the state tenure com-mission and the trial court was, in the opinion ofthe appellate court, inconsistent with the legislativeintent. The rights lost were those acquired by

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teachers on continuing tenure, and those rights arelost only if the teacher resigns without giving 60days' notice.

The appellate court said that discharge of atenure teacher can be accomplished only by strictcompliance with the procedural safeguards pro-vided by the tenure law. The appellate court heldthat the dismissal of the teacher in this case wasprocedurally defective because of noncompliancewith the law. Therefore, the court reversed the de-cisions of the state tenure commission and trialcourt that the teacher forfeited his rights under thetenure law.

New Hampshire

McDonough v. Kelly329 F.Supp. 144United States District Court, D. New Hampshire,July 28, 1971.

A dismissed Manchester teacher brought suitagainst the 'superintendent of schools and the indi-vidual members of the board of education, charg-ing that his dismissal did not meet the constitu-tional requirements of the due process and wastherefore invalid.

The teacher had taught mainly in junior highschool and was also active in local politics. Duringthe 1968 -69 school year the teacher was unhappywith his assignment. He did not return his contractfor the 1969.70 year which was sent out in May1969, asserting that he had never received it. Also,he had stated to his principal that he was "going tolook for something else." During the summer of1969 much correspondence took place betweenthe teacher and the superintendent, but it re-

mained unclear as to whether the teacher wouldreturn in September. However, in September theteacher was offered another assignment at an ele-mentary school. He thought that this was to be atemporary assignment until a position was availableat the junior high-school level. The superintendentintended that it be a permanent assignment.Another 1969 contract was sent to the teacher; hedid not return it, again asserting that he never re-ceived it. Difficulties persisted with regard to theassignment, and meetings were held and letters exchanged, with the teacher apparently wishing to bedismissed so that he could receive a hearing beforethe school board. Ultimately, the teacher wasnotified of dismissal, and a hearing was held with13 of the 15 members of the board present. Therules of the school board require an affirmativevote of the majority of the entire board for dis-missal, There was not a clear majority of the board

voting for dismissal, and another meeting was held.At the second meeting one or the members whowas not at the first meeting cast the deciding votefor dismissal.

The first question before the court waswhether the teacher was entitled to a hearing at all.The school board maintained that he was not sincehe had no contract for the 1969-70 school year.The court said that this overlooked the fact thatthe superintendent assumed that his position waspermanent, and that regardless of his con tractstatus the teacher had been hired for the 1969-70school year. Additionally, state law grants tenurerights to a teacher who has taught for three ormore years. Since this teacher had done so, thecourt held that the teacher was entitled to a hear-ing on the question of dismissal.

The next question before the court was wheth-er the hearing that was held satisfied due process.The teacher had asserted that the notice was defec-tive because it failed to inform him of his right tobe present and represented by counsel. The courtdid not agree, noting that the teacher was fullyaware of his right to appear as indicated by hisprevious correspondence. Also, his political in-

volvement would apprise him of his rights. Thecourt also found that the teacher had waived hisright to have counsel present. As to the hearingitself, the court found that it was fair and satisfiedconstitutional requirements. The teacher was givena chance to present his case and cross-examinewitnesses.

What the court did find to be defective was theprocedure followed by the board after the hearing.The missing member who cast the deciding votehad not been present at the hearing and had notheard the teacher's case. He did, however, discussthe case at length with the superintendent andother members of the school administration. Thecourt held this to be a blatant violation of theteacher's constitutional rights to due process underthe Fourteenth Amendment. "The word hearingitself means that those sitting in judgment shall bepresent to 'hear' the evidence," the court said. Be-cause of this violation the court niled that theaction of dismissal was null and void.

On the issue of damages the court ruled thatthe teacher was not entitled to recover for tworeasons. First, that suit had been brought againstthe individual members of the board in federalcourt rather than against the board itself in statecourt. The other reason for the court's denial ofdamages was the conduct of the teacher. The courtsaid that his whole course of conduct "evincesclearly that unless he could get a teaching assign-ment satisfactory to him, he would risk dismissal in

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the hope that the hearing that was required wouldresult in such an assignment." The teacher wasordered reinstated as a tenure teacher with hisassignment left to the discretion of the schooladministration.

New Mexico

Fort Sumner Municipal School Board v. Parsons485 P.2d 366Court of Appeals of New Mexico,April 23, 1971. Certiorari denied, SupremeCourt of New Mexico, 485 P.2d 357,May 19, 1971.

The local board decided not to re-employ atenure teacher because of a reduction in studentenrollment while retaining two nontenure teachers.The tenure teacher appealed to the state boardwhich reversed the action. The local board ap-pealed.

Facing a decrease in student enrollment andconcomitant decrease in funds, the board deter-mined that the number of classes offered in certainsubjects should be reduced, principally in the areain which the tenure teacher was certified to teach.The basis for the local board's action in dismissingthe tenure teacher while retaining two nontenureteachers was that the tenure teacher was certifiedonly to teach English-language arts and socialstudies, which both of the nontenure teachers wereeligible to teach. Additionally, one of the nonten-ure teachers was qualified to teach Spanish and theother, physical education and athletics. Spanishwas the only foreign language that anyone in theschool district was qualified to teach. To be ac-credited a school system was required to teach oneforeign language. The only other teacher in the sys-tem certified to teach Spanish was also the onlyteacher certified to teach special education. Theteacher certified to teach physical education wasthe only teacher in the school system so certified,and physical education was required by state law.Thus, the local board was faced with either failingto re-employ a tenure teacher or not offering re-quired subjects.

The state board, joined by the teacher, em-phasized on appeal the public policy of retainingexperienced teachers through indefinite tenure dur-ing satisfactory performance. The teacher alsoargued that even in the interest of preserving thecurriculum the local board may not retain a non-tenure teacher while dismissing a teacher withtenure. The position of the local board was thatthe rights and welfare of the schools and the chil-dren could not be subordinate to the rights of atenure teacher.

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It. was the opinion of the court that the answerto this point did not require that a choice be madeof the allegedly competing public policies. Ratherthe question was whether there was substantialevidence supporting the local-board decision. Thecourt held that there was substantial evidence sincethere was an affirmative showing that there was noposition available to the tenure teacher which shewas qualified to teach. For if she was re-employed,the program of the school would be seriously af-fected.

The state board and the 'teacher argued, how-ever, that the decision of the state board should.beaffirmed because there was substantial evidence tosupport its reversal of the local-board decision. Thecourt disagreed on the basis that state board reviewis limited to a finding of whether or not there wasevidence to support the local-board decision. Inthis instance the court determined that the stateboard had unreasonably held that there was nosubstantial evidence to support the local board de-cision. The decision of the state board was reversedand that of the local board affirmed.

Lenning v. New Mexico Slate Board of Education485 P.2d 364Court of Appeals of New Mexico,May 7, 1971.

The Roswell Independent School District re-fused to re-employ a tenure teacher and the stateboard affirmed this decision. The teacher then ap-pealed.

The charges against the teacher, which werefound to be supported by the local board wereincompetency, insubordination, violation of con-tract, violation of the local-board rule regardingcorporal punishment, and improper and unprofes-sional conduct.

The teacher contended that she was dismissedfor unsatisfactory performance, and accordinglyshe was not afforded the procedural safeguards ofthe state board regulations. These regulations pro-vide that before a tenure teacher may be dismissedfor unsatisfactory performance, three conferencesmust be held with the teacher's immediate super-visor or some other person designated by theboard. A written record of such conferences mustbe kept and signed by both parties. Refusal to signmust be noted on the record.

The first attempt of the principal to meet withthe teacher resulted in the teacher's refusing to signthe record and returning it stating that she wouldnot sign until she had a conference with the per-sonnel director or the superintendent. The secondattempt resulted in the teacher's refusing to meet

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with the principal and telling him "to tell it to herlawyer." No further conferences were attemPted.

In reaching its decision the court assumed thatthe refusal of the local school board to re-employthe teacher was on grounds of unsatisfactory per-formance. The question, therefore, was whetherthere was a substantial departure from the rule ofrequiring prior conferences. In the opinion of thecourt there was no substantial departure. Althoughthe rule requires three conferences, the courtfound implicit in the rule the requirement that theteacher cannot thwart the law or regulation by re-fusing to confer. In view of the teacher's refusal toconfer, the court said, she cannot now complain ofthe failure to give her three conferences.

The teacher also contended that the findingsof the local board were not supported by the evi-dence. On review of the record, the court con-cluded that the findings were supported by sub-stantial evidence in every detail, and upheld thedecision of the state board against the teacher.

McAlister v. New Mexico State Board ofEducation487 P.2d 159Court of Appeals of New Mexico,June 11, 1971.

An elementary-school principal was dischargedduring his contract term by the Hobbs MunicipalSchool Board. On appeal, the state board affirmedthe decision of the local board. The principal thenappealed to the court.

The main reasons for the action of the localboard were that a reading program at the princi-pal's school departed from the self-contained class-room basis and that this program was conductedwith his knowledge and approval. In permittingthis program the principal did not seek approvalfrom anyone. There was evidence that the superin-tendent had told the principal not to depart fromstandard procedure without prior approval. How-ever, the principal maintained that he had theauthority as principal to effect this program anddid not need approval. This program formed thebasis of the charge of insubordination against theprincipal.

The principal's first argument on appeal wasthat the reading program had been in effect inprior years and, therefore, could not be a basis fordischarge during his current contract. In this herelied on a New Mexico case holding that ,`matterswhich occurred under a previous contract wouldnot support cancellation of a subsequent con-tract." The court held that case inapplicable be-cause although his departure from the standard

classroom organization had occurred previously, itdid not alter the fact that insubordination hadoccurred under the current contract.

The principal also complained that four writ-ten exhibits presented at the local board hearingshould not have been admissible because they werehearsay and prejudicial to his interests. All four ofthe exhibits had some bearing on the principal'sknowledge that he should obtain higher approvalprior to changing classroom structure. The courtdid not find them prejudicial to the intersts of theprincipal since none contained evidence of insubor-dination during the current contract term but eachtended to establish that the current insubordina-tion was willful.

The principal's third point on appeal was thatcertain written statements were presented to theboard by the superintendent in support of hisrecommendation that the principal be terminatedand that some of these were later also used at thelocal board hearing. This, the principal claimed,was prejudicial. The court did not find this pre-judicial since under state law there still must beevidence substantiating the discharge for cause.

The principal also claimed that he was entitledto, but did not receive, proper notice pursuant to astate board of education rule that written notice ofdischarge or termination of services for unsatisfac-tory work performance shall be served at least twoweeks prior to the end of the school year. Hisnotice of discharge was served in July, sometimeafter the close of the school year. The court re-jected this contention, saying that the two weeks'notice applies to termination situations, and wasnot applicable to the principal's notice of dischargeduring the term of his existing contract.

New York

Bailey v. McDougall320 N.Y.S.2d 271Supreme Court of New York, Queens County,December 18, 1970.

Following disruptions and demonstrations at ajunior high school in New York City that closedthe school for two days, some of the teachers didnot return to school but continued to protest out-side the school. After one week the teachers de-cided to return to work but prior to this they allreceived telegrams from the community superin-tendent notifying them that they were "tem-porarily assigned" to duty at another schoolpending investigation of their conduct at the juniorhigh school. Four of the teachers were tenured, therest were not.

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The teachers brought an action to force thesuperintendent to rescind the transfers and toallow them to continue their duties at their formerschool. The superintendent alleged that the tele-grams were sent to remove the dissident teachersfrom the disorderly scene in front of the school.

The teachers charged that they were trans-ferred in violation of the education law. The super-intendent, on the other hand, maintained that theywere "temporarily assigned" and not transferred.Under the education law providing for the creationof the community school districts in New YorkCity, the community superintendent has the powerto transfer teachers without their consent for cer-tain enumerated reasons, including disciplinaryaction, and in the case of tenure teachers, follow-ing charges and a hearing. The court found that thetemporary assignments for an indefinite time con-stituted transfers within the meaning of the lawand could not be accomplished except in ac-cordance with its provisions. The court concludedthat the attempted transfers of the teachers whohad tenure were invalid since they were not as aresult of charges and a hearing at which the teach-ers were found guilty.

As to the nontenure teachers, the court notedthat under the law it was not necessary that theybe given a hearing on a transfer. Accordingly, therequested relief was denied as to the teachers with-out tenure.

Karin v. Board of Education of Central SchoolDistrict No. 1317 N.Y.S.2d 465Supreme Court of New York, Oneida &My,December 7, 1970.

A teacher brought a proceeding against theboard of education, seeking to set aside its determi-nation dismissing her from her position. Sometimein the fall of 1969, the teacher had been servedwith written charges by the school district. She wascharged with refusing to accept her assignment,failing to attend school to perform her duties, andfailing to present any medical evidence as to anyclaim of illness or disability. Following a hearingon these charges, the board dismissed the teacher.The teacher appealed to the state commissioner ofeducation who upheld the action of the localboard. An appeal was then taken to the court.

The statute applicable to teacher dismissal pro-vides that I'pllowing the action of the board of edu-cation an appeal may be taken to the commissioneror to the court. If the teacher elects to appeal tothe court, the action of the board shall be deemedfinal for the purpose of such proceeding.

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It was the opinion of the court that the deci-sion of the school board on November 11, 1969,was a final decision and that the action brought bythe teacher was therefore barred by the statute oflimitations since it was not brought within fourmonths as required. Additionally, the court foundthe teacher's action barred since she had electedpreviously to appeal to the commissioner under thestatute to review the school board's determination,and having exercised this right of election ofremedy, could not later bring a proceeding in thecourt. The petition of the teacher was dismissed.

LeTarte v. Board of Education of the LakePleasant Central School District316 N.Y.S.2d 781Supreme Court of New York, Hamilton CountyDecember 30, 1970.

A supervising principal sought a review of thedetermination of the board of education sus-pending him without pay from September 8, 1970,to November 16, 1970.

On September 28, 1970, a total of 22 chargeswere preferred against the principal, and he wassuspended without pay pending a hearing on thecharges. Pursuant to state law a hearing was heldbefore a panel which found cause for action onthree of the charges and no cause for action withregard to the other 19 charges. The panel recom-mended 14 days' suspension without pay. Follow-ing receipt of this report the board of educationdetermined that there was no cause with regard to11 charges but that there was cause with regard tothe other 11. The board gave reason for each find-ing, imposed no penalty on three charges, butspecified disciplinary penalties for the other eightand suspended the principal without pay for a totalof 69 days.

The principal maintained that the determina-tion of the board was arbitrary since it imposed apenalty far in excess of that recommended by thehearing panel, and that since the board decisionwas based on the same evidence reviewed by thepanel, the board should be required to accept thefindings and recommendations of the panel.

Reviewing the state law applicable to chargesagainst teachers, the court noted that the statuterequired that following the receipt of the report ofthe hearing panel "the employing board shall deter-mine the case by a vote of the majority of all themembers of such board and fix the penalty orpunishment, if any." The court held that the find-ings and recommendations of the hearing panelreferred to in the statute "are simply advisory incharacter and not in any way conclusive upon the

employing board." To hold otherwise, the courtcontinued, would render meaningless the statutoryrequirement that the board determine the case andfix the penalty. Therefore, while the statuteauthorizes the hearing panel to make findings andrecommendations, the power "to determine thecase" is vested in the local board. Thus, the issuebefore the court was whether the board had actedarbitrarily.

The court stated that the scope of its review ofschool-board acts was limited to a consideration ofwhether there was substantial evidence to supportthe findings. Further, in reviewing the punishment,the court could consider only whether the penaltywas so disproportionate to the offense as to bearbitrary and capricious or an abuse of discretion.In looking at the record in this case the courtfound substantial evidence to support the board'sdetermination and disciplinary action. However,the court did feel that the total punishmentimposed was somewhat excessive. The totalpenalty was reduced to 50 days' suspension withreinstatement directed as of October 28, 1970.

Lippold v. Board of Education of the Cityof New York324 N.Y.S.2d 650Supreme Court of New York, Special Term,Kings County, Part I, August 18, 1971.

A high-school mathematics teacher assertedthat he had acquired tenure and sought to annulthe action of the board of education in terminatinghis services without a hearing. The teacher hadserved as a regular substitute teacher for the1966-67 and 1967-68 school years at the same highschool. He received satisfactory ratings for bothyears. For the 1968 -69 school year he received aregular appointment, again at the same schoolunder the same principal and again received a satis-factory rating. Early in the ,1 969-70 school yearthe teacher was informed by the board of examin-ers that his license would be terminated on June30, 1970, for failure to complete various courserequirements. On June 6, 1970, the school boardtold him that because of the termination of hislicense his services would also be terminated as ofthe same date. The teacher then wrote to theboard, stating that by reason of his substitute ser-vice he had acquired tenure and his license couldnot be revoked without a formal hearing. Theboard replied that although he was eligible to claimhis substitute service toward fulfillment of the re-quired probationary period, the claim must bemade within 30 days of regular appointment, and

since the teacher had not filed for the credit, hehad not acquired tenure.

It is established law in New York that a teach-er who has served a satisfactory probationaryperiod and has acquired tenure, cannot be sum-marily dismissed without a hearing and charges onthe ground that he has failed to meet eligibilityrequirements for his position. State law providesthat the probationary period may be from one tothree years to be fixed by the board of educationexcept that in the case of a teacher who has ren-dered satisfactory service as a regular substitute fora period of two years, the probationary periodshall be limited to one year. The board of educa-tion asserted that for the past 25 years it had re-quired teachers to specifically apply for this sub-stitute service credit within 30 days of regular ap-pointment. The reason given for this requirementwas to put the principal on notice that the teacherwas in the last year of his probationary period sothat there would be adequate time for evaluation.The board asserted that it would be "an impossibleburden" on it to keep track of which teachers wereeligible for the substitute service credit becausethousands of new teachers were appointed eachyear.

The court held that since state law gave thebenefit of the substitute service credit auto-matically, it was not within the power of the boardto require the teacher to apply for the credit andto put a time limit on that application. The courtsaid that the board's administrative difficultiesmust be solved in a manner other than clashingwith the plain provisions of the statute, notwith-standing the fact that the procedure had beenutilized for 25 years. The court also noted that inthis instance the board had not been misled by theteacher's failure to apply for the credit since hehad taught in the same school under the same prin-cipal for almost three years when he was rated atthe end of the probationary period.

Accordingly, the court held that the teacherhad satisfactorily completed his probationaryperiod and had acquired tenure. As a tenure teach-er, he could not be removed from his positionwithout charges and a hearing. The relief sought bythe teacher was granted.

Powell v. Board of Higher Education of theCity of New York325 N.Y.S.2d 14Supreme Court of New York, Special Term,New York County, Part I, October 4, 1971.

The former president of Kingsborough Com-munity College brought suit against the board of

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higher education, seeking reinstatement to his posi-tion on the grounds that no formal charges wereever served upon him as required by the board'sbylaws. The board took the position that pro-cedural and substantive due process did not extendto the president under circumstances that involvedremoval from an administrative position only.

The court said that a close reading of the per-tinent sections of the bylaws clearly indicated thatmembers of the instructional staff, of which thepresident is concededly a member, may be re-moved for cause subject to formal charges and ahearing. Since the bylaws did not attempt to limitthe definition of service or duties to exclude ad-ministrative services or duties, the court ruled thatthe president was entitled to the due process pro-cedures set out in the bylaws and that the actionsof the board were arbitrary. Accordingly, the re-quested relief was granted.

Sife v. Board of Education of the Cityof New York317 N.Y.S.2d 557Supreme Court of New York, Special Term,Kings County, Part I, November 1 7, 1970.

A tenured high-school teacher in New YorkCity brought this court proceeding, challenging hissuspension without pay following the filing ofcharges for incompetence and inefficiency. Heclaimed that under the law he was entitled to re-ceive full compensation during the period ofsuspension.

The statute relied upon by the teacher was thedecentralization law applicable to New York Cityschools. The statute provided that teachers underthe jurisdiction of the Community Board wouldreceive full compensation during a period of sus-pension. However, the court found that com-munity boards did not have jurisdiction over seniorhigh schools, and in such instances the authorityrested with the chancellor who succeeded and re-tained the powers of the former superintendent of.schools with respect to high-school teachers, in-cluding the power to suspend teachers withoutpay. Accordingly, the teacher could be suspendedwithout pay, and his petition was therefore dis-missed.

Siniapkin v. Nyquist325 N.Y.S.2d 823Supreme Court of New York, Special Term,Albany County, November 15, 1971.

A former school psychologist petitioned thecourt for a review of the decision of the state com-

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missioner of education dismissing his appeal fromhis discharge. Prior to the 1968-69 school year, thepsychologist had attained tenure in his positionwith the Board of Cooperative Educational Ser-vices (BOCES). During 1968-69, he and anotherpsychologist without tenure worked full time. Atthe end of the year, the psychologist in this pro-ceeding was notified that his services were beingdiscontinued because of a curtailment of funds.According to records for the 1969-70 school year,two part-time psychologists were employed byBOCES. In dismissing the appeal the commissionerdecided that since neither of the two part-timepositions constituted a full-time position, thepsychologist had no legal claim because part-timepositions are not covered by the tenure law.

The court noted that the authorities reliedupon by the commissioner held that part-time em-ployees gain no tenure in their positions regardlessof length of service and, therefore, are not entitledto appointment by reason of tenure if the positionis converted to full time. However, the court saidthat these holdings do not serve the converseproposition that would permit an already tenuredemployee in a full-time position to be replaced byjunior-tenured or nontenured personnel when hisfull-time position is converted to part-time. Thecourt held that "[t] enure once obtained in a full-time position should prevail in that position eventhough the position is converted to part-time.".

Since the full-time and part-time positions ofschool psychologist were in the same tenure area,the court ruled that the psychologist had the rightto claim the protection of the sections of the edu-cation law which provide that the creation of asimilar position within the same tenure area willentitle the tenured employee of the positionabolished to the new position or status on a pre-ferred list for a similar position. The case wastherefore remanded to the commissioner for adetermination concerning whether BOCES acted ingood faith in converting the full-time position ofschool psychologist into a part-time position;whether the positions converted were in fact part-time; whether the psychologist was offered eitherof the converted positions, or placed on a preferredlist with regard thereto; or whether his tenure wasproperly credited in relation to those who wereplaced in the positions. Should it be determinedthat the BOCES acted erroneously, the psycholo-gist would be entitled to an order appointing himto the position if it still exists. If there is no posi-tion, the commissioner must determine if thepsychologist is entitled to damages by way of lostsalary because of the failure to appoint him to oneof the converted positions.

Walsh v. Nyquist325 N.Y.S.2d 103Supreme Court of New York, AppellateDivision, Third Department, October 21, 1971.

Following a hearing held pursuant to theteacher tenure law, the teacher was dismissed bythe Sherburne-Earlville Central School District oncharges of insubordination, inefficiency, andneglect of duty. The teacher then appealed to thestate commissioner of education who sustained thefindings of the board but took the view that dis-missal was too severe a penalty and converted thepenalty to suspension without pay from June 3,1969, to the date of his decision, February 27,1970.

The teacher then brought suit to annul theportion of the commissioner's decision relating tosuspension without pay. The trial court dismissedthe suit. On appeal, the teacher argued that sincethe charges did not warrant dismissal, the reduc-tion of the penalty to suspension was arbitrary.Under New York law, decisions of the commis-sioner are final unless they can be shown to bearbitrary. The appellate court held that the actionof the commissioner in reducing the penalty was inno sense arbitrary.

The decision of the trial court dismissing thepetition of the teacher was affirmed.

Weinbrown v. Board of Education of Union FreeSchool District No. 15271 N.E.2d 549Court of Appeals of New York,June 9, 1971.

A teacher brought an action against the boardof education, seeking an order directing it to em-ploy him as a tenured teacher of French. The trialcourt dismissed the petition, and the intermediateappellate court affirmed. The teacher appealedfurther.

The teacher was employed on a probationarybasis in September 1965. On April 23, 1968, theboard accepted the recommendation of the super-intendent and appointed the teacher to tenure. Hewas notified that tenure would be effective July 1,1968, and was also notified of his projected salarywhich he accepted in writing. Thereafter, on May24, 1968, the teacher was notified that the boardhad rescinded its previous grant of tenure. No rea-sons were given.

New York tenure law provides that at theexpiration of the probationary period the superin-tendent shall make a written report to the board ofeducation recommending for tenure those persons

Pi

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found competent, efficient, and satisfactory. Thosenot recommended for tenure must be notified 60days prior to the end of the period. The questionbefore the court in this case, whether the tenurenotice was effective and binding, depended onwhether the board had the power to make an ap-pointment to tenure prior to the end of the teach-er's probationary period.

In arguing that it did not have the power tomake an appointment prior to the end of the pro-bationary period, the board cited a 1939 NewYork case. The highest appeals cowl said that thiscase was decided 13 years prior to the time thatthe 60-day notice provision was added, and, there-fore, its reasoning did not apply. The court heldthat the statute did not forbid the offer of an ap-pointment to tenure prior to the end of the proba-tionary period and that the teacher's acceptance ofthe offer made the tenure appointment effective.Since the appointment to tenure was complete, itcould not be rescinded by the board. Accordingly,the decisions of the lower courts were reversed,and the request of the teacher for an order di-recting the board to employ him was granted.

Ohio

Crabtree v. Board of Education, IVellston CitySchool District270 N.E.2d 668Court of Appeals of Ohio, Jackson County,December 28, 1970. Certiorari denied, UnitedStates Supreme Court, June 29, 1972. (41 U.S.Law Week 3002).

On April 13, 1970, the superintendent recom-mended at a meeting of the school board that ateacher not be re-employed. The following day theteacher was sent notice of this action. At the timethe teacher was employed under a three-year con-tract, and had he been re-employed, would havereceived continuing contract status. The teachersought an injunction to force his re-employment.He charged that since the regular clerk of the boardwas not present at the meeting and the board didnot appoint one of its members to serve in hisplace as required by law, the minutes taken at themeeting and the notice sent to him were nullities.The trial court denied relief and the teacher ap-pealed.

The appellate court ruled against the teacher.The court felt that the teacher was attempting toread something into the law that was not there, forif the legislature had intended what the teachermaintained, it would have said that if the regularclerk was not present and the board failed to ap-

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point a clerk pro tampon', any action taken wouldbe null. Since this was not what the law said, thecourt affirmed the holding of the trial court deny-ing the injunction requested by the teacher.NOTE: The Supreme Court of the United States,denied a writ of certiorari for review of decision.

State ex rel. Gandy v. Board of Education,Continental Local School District269 N.E.2d 605Supreme Court of Ohio,May 5, 1971.

A teacher and/or guidance counselor sued tocompel the board of education to issue him a con-tinuing contract. The trial court granted the reliefand the board of education appealed.

The teacher had been employed in the districtsince 1961-62 under provisional or professionalteaching certificates and under a provisional pupil-personnel service certificate. When last re-employ-ed, the teacher had held a professional certificate,had taught at least three years in the school sys-tem, and had been unqualifiedly re-employed. Theteacher testified that he had filed copies of his cer-tificates with the local superintendent. He claimedthat since he had met the criteria for a continuingcontract, he was entitled to such a contract, effec-tive for the 1969-70 school year.

The school board alleged that the continuingcontract was denied on the ground that the teacherdid not file a valid professional certificate with thecounty superintendent and the record cards whichtend to support the filing of the certificate did notconstitute notice of the teacher's eligibility for acontinuing contract. The appellate court foundnothing in the statute providing for a particularform of notice that the teacher has met the re-quirements of continuing contract status. There-fore, the record cards provided sufficient notice tothe school officials that the teacher was eligible fora continuing contract.

The second question on appeal was whether ateacher who is eligible for a continuing contractstatus under the statutory provisions is entitled tocontinuing contract upon being unqualifiedly re-employed. The appellate court agreed with andadopted the opinion of the trial court holding thatthe teacher was entitled to a continuing contract.

Pennsylvania

Lakeland Joint School District, LackawannaCounty v. Gilvary283 A.2d 500Commonwealth Court of Pennsylvania,November 9, 1971.

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On July 1, 1968, the Scott Township schoolsystem became part of the Lakeland Joint SchoolDistrict. Prior to consolidation the plaintiff in thiscase was supervising principal of the Scott School.In anticipation of jointure, an organization com-mittee recommended that the supervising principalof Lakeland hold the same position in the newdistrict and that the Scott building be in charge ofa head teacher rather than a principal. The plaintiffhere was reassigned as a classroom teacher inanother school where a teaching vacancy existed inthe subject area for which he was certified. He thenfiled a complaint seeking the salary difference be-tween his salary in his former position and his sal-ary as a teacher. Preliminary objections were sus-tained by the trial court which directed that anadministrative hearing be held prior to a courtaction being brought.

The administrative hearing was held before theboard of education which affirmed its prior deci-sion. The principal then appealed to the statesuperintendent of public instruction who, after ahearing, reversed the decision of the board anddirected that the principal be reinstated to theposition of principal at the Scott School. Thiswould have forced the board to re-establish theposition of principal. The reasons given by thestate superintendent for his action was that therewas no evidence to prove that the board or thecommittee had consulted the principal or anyother educator in the district prior to the board'saction.

The school district appealed to the trial court,requesting a hearing de novo, which was granted.The trial court found that the principal had beenconsulted and that there had been nothing arbi-trary nor discriminatory about the board's action.Therefore, the state superintendent's decision wasreversed, and the board of education action sus-tained.

This appeal was then taken by the principal.He relied on four factors to show that the action ofthe board was arbitrary and discriminatory. Thefirst was that he was not given a hearing before theboard action was taken. In discounting this factor,the appellate court noted that there was no allega-tion in the complaint of the principal that a hear-ing had been requested prior to action being taken.Further, at the subsequent board hearing there wasagain no allegation that a hearing had been request-ed earlier. The second contention of the principalwas that the duties of a head teacher are the sameas those of principal and, therefore, the boardaction was merely a change in name, a sham tohide the discriminatory demotion. Based OW theevidence presented, the appellate court found this

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to be untrue. The next contention was that theScott building was the largest attendance center inthe district and was now without a principal, andmerely in charge of a head teacher. The appellatecourt said that this was obviously a question ofjudgment on the board's part; moreover, this con-tention of the principal was inconsistent with hisargument that the duties of a head teacher and aprincipal were the same. The final contention ofthe principal was that the school district wouldhave been reimbursed by the state if the mandatedposition of principal had been continued; thiswould not occur in the nonmandated position ofhead teacher. This contention, the appellate courtsaid, merely reinforced the lower court holdingthat the duties of the two positions were not thesame.

The appellate court did not feel that the trialcourt decision in any way jeopardized the tenuresystem. When jointure occurs with a reduction inpositions, the school board "must select amongthose properly certified to fill mandated adminis-trative positions." Tenure then requires that thosecertified for and formerly occupying mandatedadministrative positions for which no mandatedadministrative position is available must he re-assigned to teaching positions within the districtfor which they are certified." Since this was donein this case, the appellate court found nothingarbitrary or discriminatory about the board'saction, and affirmed the decision of the trial court.

Tennessee

City of Knoxville Board of Educationv. Markelonis460 S.W.2d 362Court of Appeals of Tennessee, Eastern Section,October 10, 1969. Certiorari denied, SupremeCourt of Tennessee, January 5, 1970.

The board of education of the city of Knox-ville appealed from the trial court order requiring itto reinstate a physical education teacher. Itspecif-ically charged that 'the trial court was in 'error inholding that the notice sent to the teacher wasinsufficient to apprise him of the charges againsthim and that the court was in error in holding thatthe board acted arbitrarily and illegally .in dis-charging the teacher.

A city ordinance provides that charges againsta teacher must be in writing but that no chargeshall ever be dismissed because lacking in form.The ordinance also states that no charge shall everbe dismissed because of insufficiency, but thecharges shall .state the 'facts on which they, are

based and give the time, place, and factual naturein detail. However, after a hearing at which theemployee testifies, he can make an affidavit that hewas misled to his prejudice because of the insuf-ficiency of the charge and that he believes that hecan obtain sufficient testimony to have the chargedismissed.

Pursuant to the ordinance, the superintendentsent the teacher a letter containing notice of twocharges against him. The first charge was that hewas arrested for burglary, and the second, that hewas suffering from "bodily infirmity or disease" ofsuch nature as to endanger the health of those withwhom he must come in contact, or which rendershim unfit for work. Following a hearing before thesuperintendent the teacher was dismissed. Thisdecision was subsequently affirmed by the boardof education.

The trial court found that the teacher couldmake no defense to the first charge since ad-mittedly he was arrested and that there was noevidence to sustain the second charge except hear-say testimony. Accordingly, the trial court foundthat the dismissal was based at least in part onarbitrary and, therefore, illegal action, and orderedthe teacher reinstated. The appellate court agreedwith this holding but did consider the chargesthemselves.

The teacher had been arrested for allegedlyburglarizing a women's clothing store and laterconfined for three weeks to a state hospital forpsychiatric treatment. However, the burglarycharge was dismissed without trial. No medicaltestimony was introduced before the school super-intendent, and the lay testimony available as to theteacher's condition indicated that he was now ofsound mind and capable of discharging his duties.Commenting on the sufficiency of the language inthe notice of charges, and noting that there was adifference between being arrested and being foundguilty, the appellate court said that it would havebeen impossible for the teacher to know whetherthe superintendent considered that for a teachermerely to have been arrested was unprofessionalconduct. The appellate court also found questionsraised as to the constitutionality of the ordinance.It declined to hold that the legal sufficiency of thenotice was saved by the ordinance provision allow-ing the accused after a hearing to make an affidavitthat he has been misled. However, this right, thecourt pointed out, is coupled with the necessitythat the accused "can obtain sufficient testimonyto cause a dismissal of the charge." This, the courtsaid, presupposes that the board still has an openmind and that the accused may be fortunateenough to have access to additional evidence. If

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there is no such evidence, the right to a fair trialafter due notice is lost.

The judgment of the trial court ordering theteacher reinstated was affirmed. Also affirmed wasthe holding of the trial court that the city couldstill proceed against the teacher after instituting anew proceeding before the superintendent.

McCoy v. McConnell461 S.W.2d 948Supreme Court of Tennessee,December 21, 1970.

A principal appealed from the decision of thetrial court in favor of the Hamilton County schoolboard. During the 1968-69 school year the princi-pal had been transferred to the position of princi-pal in another school at the same pay. He wrote tothe board of education, demanding a copy of anycharges against him and a hearing on the same. Theboard replied that there were no charges againsthim and that he was being transferred in accor-dance with the state tenure law that provided fortransfers providing there was no reduction in rankor pay.

The appellate court adopted and affirmed theopinion of the trial court, which held that thetransfer was not a demotion and was not a viola-tion of the state tenure law. Rejected by the courtwas the argument of the principal that although hispay was technically the same as previously, sincehis transfer was effective as of the new or 1969-70fall term and his successor may or may not havebeen given an increase over what he had earned,this amounts to a reduction. The court said thisargument was untenable in that the tenure law didnot purport to control successor salaries or baseany current or present right on successor rights.

Potts v. Gibson469 S.W.2d 130Supreme Court of Tennessee,June 21, 1971.

A principal with tenure challenged the actionof the board of education of Cumberland Countytransferring him from principal of a high school toprincipal of an elementary school at a reduction insalary. The principal alleged that this was in effecta dismissal entitling him to notice of a hearingbefore the board. The board conceded that theprincipal was entitled to a hearing after notice butmaintained that ample notice was given.

After a full hearing, the trial court dismissedthe principal's complaint on the basis of a findingthat the evidence sustained the board's finding of

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incompetence and neglect of duty. The principalthen appealed.

The principal had served in the high school fora number of years. The board opposed renewinghis contract for the 1970.71 school year and gavehim an opportunity to voluntarily relinquish theposition. After considering the matter, the princi-pal requested a board hearing. The superintendentthen sent in letter form the charges that would beheard by the board. They included specific chargesunder the headings of poor public relations, poormanagement of high school funds, and a "per-missive" attitude that resulted in discipline andschool maintenance problems. Following the hear-ing at which some of the board members appearedas witnessess, the board ordered the transfer of theprincipal to the elementary school.

On appeal the higher court first dealt with theadequacy of the notice. At the outset, the courtnoted that Tennessee case law recognizes the rightof a tenure teacher to notice of a board hearingbefore being transferred to a position of lesserresponsibility and reduced pay. The applicablestatute requires that the charges against the em-ployee must be made in writing "specificallystating the offenses which are charged." The ap-pellate court found that the letter to the principalset forth with considerable particularity the natureof the complaints and that this was followed by alater clarifying letter to the principal stating thatthe board considered these charges to be tanta-mount to a charge of incompetence and neglect ofduty. Considering this in conjunction with the laterfull hearing before the trial court, the appellatecourt found the complaint of insufficiency ofnotice was reduced "to a bare technicality devoidof substance."

The appellate court also found no merit in theprincipal's contention that the proof at the boardhearing went beyond the notice. On the merits, thetrial court had found that the principal was given afull and fair hearing before the board and hadfound the evidence "heavily in favor" of theboard's findings of neglect of duty and incom-petence in the exercise of executive authority. Theappellate court said that the conditions in the highschool described by the trial court were "so longcontinued, so flagrant and so open and obviousthat to say the principal was unaware of themwould at the same time necessitate a finding ofgross negligence or indifference to the good orderof the school." Consequently, it could not be saidthat evidence preponderated against the trial courtfindings and conclusions.

The last argument of the principal, that theentire proceeding should be reversed because the

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members of the board appeared as witnesses at theboard hearing to testify in favor of the transfer andthen sat in judgment on their own testimony wasalso rejected by the appellate court. Although theappellate court found that this practice does notcommend itself as best suited to ascertaining truthand justice, the findings and conclusions of theboard could not be upset for this reason absent ashowing of a bias or prejudice, which was notevidenced. Accordingly, the decision of the trialcourt against the principal was affirmed.

Vermont

Petition of Davenport283 A.2d 452Supreme Court of Vermont, Washington,October 5, 1971.

Three high-school teachers sought review ofthe action of the officials of the Hartford SchoolDistrict in suspending and subsequently dismissingthem. The difficulties began on May 7, 1970, whenthere was a student walkout and demonstration atthe high school during school hours. As a conse-quence of this episode, the three teachers weresuspended for noncompliance with their contracts.The notice to two teachers stated that they were.being suspended for failure to attend to duties andcarry out reasonable orders of the principal. Thethird teacher was suspended for conduct unbe-coming a teacher. All three requested specificationof the charges and a public hearing. The hearingswere set but were not held as scheduled becausethe teachers applied for a federal court injunctionto enjoin further proceedings. The court relief waswithheld pending the school-board hearing. Afterthe hearings were conducted, the board madewritten findings of fact and concluded that allthree should be dismissed. The teachers then peti-tioned for a court review.

All three teachers complained that they hadbeen denied an impartial hearing, but no actualprejudice was shown or claimed. They claimed thatthe board's participation in the suspension de-prived them of a fair hearing, thereby denyingthem due process. In rejecting this claim, the courtsaid prior involvement in the subject matter alonewould not work a judicial disqualification. In thisinstance, however, upon examination of the hear-ing transcript, the court found no indication ofbias to preclude the board from conducting an im-partial hearing. The court then turned to the ques-tion of whether the statute governing the dismissalof the teachers infringed upon their First Amend-ment rights.

In the case of the teacher dismissed for unbe-coming conduct, the charges were that she solicitedsignatures for a petition from faculty and students,and that the substance of the petition was alteredafter the signatures were procured. It was alsoasserted that the teacher made inconsistent anduntrue statements concerning her participation inthe procurement of the petition, used the copyingmachine without authorization, neglected herteaching duties on the day of the protest, anderroneously informed teachers and students thatshe had been fired. The board found against theteacher on all of the charges except the un-authorized use of the copying machine. The coreof the charges was the teacher's involvement in thepetition seeking permission from the school boardfor released time for a symposium or class discus-sion to protest the invasion of Cambodia. Also, thepetition apparently requested that students fromDartmouth College be permitted to participate inthe program. The petition was denied by theschool board, but before the teacher was informedof this, the principal gave permission for threeDartmouth students to engage in discussion duringthe teacher's class. It appeared from the transcriptthat when the class was over, the teacher wassummoned to a meeting with the principal atwhich she was informed that the petition had beendenied by the board, but she was not told of anypending disciplinary action against her. The chargeof neglect of duty arose out of her absence fromthe classroom for this meeting even though herclass periods were covered by other teachers.

The court found it abundantly clear that theteacher's involvement with the petition was theroot of the disciplinary action against the teacher.The court noted that the right to petition thegovernment for redress of grievances is guaranteedin the Bill of Rights and that "[f] undamental free-dom thus protected cannot be stifled in the nameof statutory language that affords no guidanceagainst the conduct condemned." The court con-cluded that the term "conduct unbecoming ateacher" was imprecise and apparently used tocover disqualifying conduct not otherwise specifiedin the statute. The court held this would be per-missible for serious misconduct unprotected byconstitutional safeguards but that the conduct ofwhich the teacher was accused did not reach suchdimensions. "There is nothing to indicate the con-duct charged against this teacher collided with theschool regulations nor the rights of other studentsor teachers." Since the teacher's conduct relatedinextricably to the exercise of the teacher's right ofpetition, the school board was without authorityto direct her dismissal for such participation.

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Therefore, the court ordered that the dismissal ofthis teacher be vacated.

The record from the hearing regarding theother two teachers indicated that the third teach-er's confrontation with the principal generatedwidespread rumors throughout the school that shehad been or would be fired. Although efforts weremade over the public address system by the teacherand the principal to thwart the rumors and avert ademonstration, a student walkout in protestagainst the dismissal took place. The two teachersin this case left their classrooms and participated inthe protest, and refused to return to their classeswhen requested to do so by the principal. As aresult of the demonstration, the principal called afaculty meeting for that afternoon but the two didnot attend. A further charge of insubordinationwas made against one of the two teachers for re-fusing to keep his study hall under control whenrequested to do so by the principal. The court con-cluded that the findings of the board were foundedon evidence. The teachers complained that theboard's decision to discharge them for failure tocarry out orders of the board and the school super.intendent cannot be sustained since the orderswere given by the principal and not the schoolboard. The court found this argument unpersuasivesince the board could delegate authority to subor-dinate school officials. In the emergency situationthat prevailed at the high school, the court said,the orders of the principal were quite reasonableand in keeping with the interests of orderly conductof the school. There was neither time nor occasionto refer the orders to the superintendent and theschool board for approval. The court did not findthe actions of these two teachers to be constitu-tionally protected activity nor did it find that thestatutory violation with which the teachers werecharged, that of failure to attend to duties or carryout reasonable orders, was ambiguous or that therewas a danger that its application would have achilling effect upon the exercise of First Amend-ment rights. The relief sought by these two teach-ers was denied and their dismissals upheld.

Washington

Reagan v. Board of Directors, RepublicSchool District 309480 P.2d 807Court of Appeals of Washington, Division 3,February 16,19 7 1.

A teacher appealed from the trial court deci-sion affirming the decision of nonrenewal of hiscontract by the school board. On March 29, 1968,

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the teacher was notified in writing of the decisionnot to renew his contract and the charges againsthim. This was accomplished by placing the noticein his message box at school. On April 7, 1968,within the 10 days required by statute, the teachersubmitted a written request for a hearing. It wasagreed by telephone to hold this hearing followingthe regular board meeting on April 11, and theteacher received written notice to this effect onApril 10. The hearing was open; the teacher waspresent with notes, a prepared statement, a taperecorder, and several friends. It appeared that thehearing was noisy and somewhat disorderly. Fol-lowing the hearing the school board determinedthat the charges had been proved and that theyconstituted sufficient cause for discharge. Theteacher then appealed to the trial court as providedfor by law.

Prior to the hearing before the trial court theteacher sought a summary judgment declaring hiscontract renewed by reason of the failure of theschool district to give him proper notice of thenonrenewal and of the board hearing. The trialcourt ruled that the teacher waived his right to begiven notice in the manner required by statute. Onappeal the teacher contended that this was error.

The controlling statute provides that the teach-er whose contract is not to be renewed, be notifiedby certified or registered mail, or personally, or byleaving a copy of the notice with some person athis residence. The statute also provides that ateacher receive at least three- days' prior writtennotice of the date, time, and place of the hearing.Failure to provide proper notice entitles the teach-er to a conclusive presumption that he is re-em-ployed for the next school year.

The appellate court noted that the Washingtonrule of waiver of a right or privilege to which aperson is legally entitled is "the intentional orvoluntary relinquishment of a known right, or suchconduct as warrants an inference of the relinquish-ment of such right." In this instance the appellatecourt observed that the teacher had five years'teaching experience and is presumed to know thelaw relating to his contract of employment. Addi-tionally, there was evidence that the teacher knewof the statutory requirement that he request ahearing within 10 days of receiving the nonrenewalnotice, knew of his right to a hearing, and knew ofhis right to be represented by counsel. From this,the appellate court said it could be reasonably in-ferred that he also had knowledge of the remainingprovisions of the law relating to the manner inwhich the board was required to give him notice.On appeal the teacher also complained that he wasunable to obtain counsel at the hearing because his

lawyer was out of town. The appellate court notedthat at the hearing the teacher did not say that hewanted or needed a lawyer nor did he ask for acontinuance until he could obtain a lawyer. Underall of these circumstances the appellate courtfound substantial evidence to warrant an inferencethat the teacher's waiver was an intentional andvoluntary relinquishment of a known right or oneof which he had constructive knowledge.

The teacher's remaining assignments of errorwere directed to: (a) the trial court finding thatthere was evidence before the school board fromwhich it could have arrived at its decision; (b) theconclusion of the trial court that the decision ofthe board was not shown to be arbitrary and capri-cious; (c) the conclusion that the court may notsubstitute its judgment for that of the board ifthere was any evidence upon which the boardcould have based its decision. The teacher con-tended that he was entitled to the trial court's in-dependent evaluation of the evidence and that thestandard to be applied was not whether there wasany evidence upon which the board could base itsdecision but whether the board had proved andestablished the cause or causes for nonrenewal.

The appellate court agreed with the teacher'sinterpretation of the standard to be applied by thetrial court since the statute requires a de novo hear-ing before the trial court of an appeal by the teach-er from the school board's decision. The appellatecourt held that this de novo hearing entails fullconsideration of the case anew to be heard by thetrial court in the same manner as though it were anoriginal proceeding in that court. In effect, the trialcourt is substituted for the board and redecides thecase. The appellate court stated that the questionbefore the trial court for determination was notwhether the school-board action was arbitrary andcapricious, measured by the test of whether therewas any evidence to support it. Rather, the ques-tion presented was whether the school board metthe burden of proving and establishing, by com-petent evidence, the cause or causes specified inthe notice of nonrenewal. In making such determi-nation, the appellate court continued, the trialcourt was required to exercise its own judgment,based on the evidence presented. The decision ofthe trial court was reversed and remanded.

Roberge v. Hoquiam School District No. 28490 P.2d 121Court of Appeals of Washington, Division 2,October 12, 1971.

An elementary-school teacher was employedfor the 1967-68 school year, and his contract for

the 1968-69 school year already had been renewedwhen he was notified on May 2, 1968, that hisemployment was immediately terminated and hiscontract for the next school year cancelled. Thereasons given were insubordination; unauthorizedcorporal punishment, and unprofessional conduct.

At this point the school district had notproperly discharged the teacher under state law.However, the teacher consulted an attorney whorequested a hearing before the school board. Thedate for the hearing was set but later postponedbecause the teacher had engaged another attorney.Prior to the second date set for the hearing, nego-tiations between the teacher's attorney and theschool board attorney took place in an attempt toreach a settlement. During the negotiations theschool board offered to pay the teacher the re-mainder of his 1967-68 salary, drop all charges ofunprofessional conduct, and cancel the hearing. Inreturn, the teacher was to resign, request the can-cellation of his 1968-69 contract, and waive anycontract renewal or other employment rights. Theagreement was put into writing and signed by theteacher on May 23, 1968. He resigned and thehearing was cancelled.

In July 1968, the teacher filed a complaint incourt charging that he had been suspended fromhis teaching position on "false charges" and as aresult had suffered damages by way of mentalanguish, loss of reputation, and alienation of thestudents. The trial court ruled that the principalissue was whether or not the teacher had resignedvoluntarily and was therefore precluded frombringing suit. After finding no evidence to indicatethat the teacher "was coerced or compelled intosigning his resignation of May 23, 1968," or thathe was induced into signing it by false pretenses,the trial court dismissed the action. The appellatecourt held that the record supported these findingsand accordingly affirmed the dismissal of theteacher's suit.

Wisconsin

State ex rel. Farley v. Board of SchoolDirectors of the City of Milwaukee183 N.W.2d 148Supreme Court of Wisconsin,February 5, 1971.

Plaintiff had been a teacher in the Milwaukeeschool system for many years. In 1960, he wasappointed to an administrative position. There-after, he served in various administrative positions,finally serving as director of the department of fed-eral projects. In June 1968, this position was dis-

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continued, but its functions continued to existunder a new designation. In August 1968, theteacher 'was notified that he was being assigned asan elementary-school teacher for the 1968-69school year at a considerable reduction in salaryover what he received as an administrator. Uponnotification of his new assignment, the teacherfiled a "complaint initiation form." When no hear-ing was scheduled and no notice of action wasreceived on the complaint, the teacher initiated thecourt proceeding seeking to compel the board toreinstate him in his administrative position. Theday after suit was filed, the teacher was notifiedthat his complaint had been rejected by schoolofficials because "there is no tenure to any posi-tion in the administrative staff of the Superin-tendent." The requested judicial relief was grantedand later vacated by the lower court. It is from thelatter decision that the teacher appealed.

The first question considered on appeal waswhether the teacher acquired tenure as an adminis-trator by virtue of rules adopted by the board. Therules provided that an administrative or supervisoryemployee who had acquired tenure as a teacher,'assistant to a principal, a vice-principal or a princi-pal, and was later promoted to an administrativeposition would retain the tenure that he had pre-viously obtained. If an administrative or super-visory employee did not have tenure in anotherposition prior to being appointed to the adminis-trative staff, he would, after three years' satisfac-tory service, obtain tenure in the school system butnot in any particular position on the administrativeor supervisory staffs. The teacher argued that sincethe restriction in the rules as to tenure in the sys-tem but not in any specific staff position appliedonly to those acquiring tenure after appointment,this evidenced an intention to grant to employeeswho acquired tenure prior to appointment to ad-ministrative and supervisory positions, tenure inthose positions.

The trial court had found that it was not theintent of the section to establish tenure in anyspecific staff position. In upholding this conclu-sion, the appellate court said that the teacher hadnot stated a cause of action because the section inquestion did not purport to create tenure in anyparticular administrative position.

The next argument of the teacher was that hehad acquired tenure under the city civil servicestatute. The statute in question exempted certainschool-board employees from coverage but did notmention the position held by the teacher. Theteacher argued that since the position was not men-tioned, it was intended that it be covered undercivil service and that he could not be removed

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without a hearing. The appellate court disagreedwith this contention noting that civil service em-ployees must be is classified and that the teacherhad not alleged facts tending to establish that hisposition was classified as a civil service positionbefore he may be allowed to claim the benefitsunder the civil service statute. It seemed to thecourt that the opposite was true in view of the factthat the teacher had first been appointed to hisposition by the superintendent of schools with theapproval of the board of education pursuant tospecific statutory authority.

Filially the teacher contended that his reassign-ment entitled him to a hearing. In view of the find-ing that the teacher had no tenure in an adminis-trative position, the court ruled that he was notentitled to a hearing when he was not reassigned tothat position. Since the teacher had tenure rights asa teacher, he could not claim tenure rights to anadministrative position. The judgment of the trialcourt dismissing the complaint of the teacher wasaffirmed.

Wyoming

Monahan v. Board of Trustees of ElementarySchool District No. 9, County of Fremont486 P.2d 235Supreme Court of Wyoming,July 2, 1971.

The contract of a continuing contract teacherwas terminated at the end of the school year bythe board of education. Claiming that he had ten-ure and that he had not been given a fair and im-partial hearing, the teacher sought court review ofthe termination. The trial court upheld the actionof the board and the teacher appealed.

It was the position of the school board that acontinuing contract teacher did not have tenureunder state law. A continuing contract teacher isone who has served three years in a district and hasbeen reappointed for the fourth year. The statutesetting out that employment of a continuing con-tract teacher continues from year to year also dif-ferentiates between dismissal and termination.Since grounds for dismissal only are listed in thestatute, the board reasoned that termination couldbe at will without regard to grourids. The appel-late court refused to accept this theory, holdingthat there must be a hearing on the termination of

the contract of a continuing contract teacher andthere must be' not only good cause for terminationbut substantial evidence to show that there wasgood cause. The court interpreted the WyomingTeachers Employment Act, the statute here in-volved, as giving tenure to a continuing contractteacher.

The appellate court then considered the con-tention of the teacher that he was not afforded afair and impartial hearing. It appeared that theteacher had been notified on March 15, 1969, thathe was being terminated. A few days later he re-quested a hearing which was held on April 10,1969. The appellate court found it clear from therecord as a whole and from admissions of theboard's attorney that the teacher did not have abona fide hearing to determine if there was justcause for his termination. The teacher's hearing thecourt said, "was nothing more than an exerciseengaged in for the sole purpose of making a recordwhich could make legal and justifiable the decisionwhich the board had made prior to the hearing."

In fact, the statement was made at the hearingthat it was deplorable that the legislature had en-acted a tenure statute. The record also disclosedthat the school board attorney acted as the pre-siding officer at the hearing. The attorney drew upthe statement of charges, acted as the prosecutor,acted as hearing officer, ruled on objections,argued with the teacher's counsel on his objections,interrogated witnesses, ruled on his own objec-tions, and sat with the board when it made its finaldecision. Rather than point to specific instancesconcerning the teacher's complaint about hearingand procedures utilized, the appellate court foundit sufficient to quote a portion of the trial courtopinion referring to the procedures at the hearingas "clumsy and irregular."

The final comment of the court concerned thefailure of the school board to adopt rules of prac-tice and to file them as required by law. In someinstances where this failure was not prejudicial orfatal, failure to adopt rules would not mandatereversal. However, here the school board had notshown that the failure to have rules of procedureswas not prejudicial to the teacher. Withoutdeciding if the grounds for termination were suffi-cient cause, the appellate court reversed the boarddecision for failure to provide the teacher with afair and impartial hearing, and remanded the caseto the trial court for further proceedings consistentwith this opinion.

Nontenure Teachers

THE FOLLOWING cases involved teachers who were on probationary statusor teachers in states without tenure protection.

Alabama

Milker v. Alabama State Board of Education441 F.2d 201United States Court of Appeals, Fifth Circuit,March 31, 1971.

Two nontenure faculty members at AlabamaState University brought suit under the federal civilrights act alleging that their employment was ter-minated because of their activities, associations,and expressions of opinions in violation of theFirst and Fourteenth Amendments. They alsoalleged that they had been given no notice of thecharges against them or an opportunity for a hear-ing. The district court directed the University togive them formal notice of the charges and a hear-ing, and reserved the power to later evaluate theadequacy of the university procedures and todetermine if the teachers' substantive constitu-tional rights had been violated.

Pursuant to that order each of the teachers wasnotified by letter of the reason for his termination.One was informed that the University wished toemploy a person with a doctorate degree in thehistory department, and the other was told thatthe University wished to employ a person with amaster of fine arts in the art department in orderto strengthen the faculties of the two departmentsand to comply with the standards of the SouthernAssociation of Colleges and Schools. The lettersalso stated that in order to make room for the newfaculty members, it was necessary to terminate oneexisting member in each department; and thehistory teacher was the only nontenured personand the last one employed in his department, andthe art teacher had the least amount of trainingand least experience in his department. Both werealso informed of a hearing on the nonrenewal oftheir contracts.

The hearing was before the University'sAdvisory Committee on Faculty Personnel. Bothparties were present and represented by counsel.The testimony from both sides was devoted almostentirely to the reasons given by the University tothe nonretention of the two faculty members andvery little mention was made of the alleged FirstAmendment activities and the University's action.At the conclusion of the hearing, the committeewas of the opinion that the question was whetherthe University had the right by law to dismiss non-tenure faculty members for the reasons given,

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which question it did not feel competent toanswer. Upon receiving this opinion from the com-mittee the president of the University notified thetwo faculty members that he had been advised bycounsel that the University had the right to refuseto renew the contracts of nontenured faculty forthe reasons given and that they would not be re-employed. The faculty members then returned tothe district court.

The district court conducted a de novo hearingand at its termination held that the faculty mem-bers had been accorded procedural due process andthat there was a factual basis for the refusal of theUniversity to re-employ them. The evidence con-vinced the court that the action of the Universitywas altruistically motivated to strengthen the fac-ulty and based on educational and administrativelysound principles and reasons. Based on these find-ings and conclusions, the district court denied re-lief to the teachers.

On appeal, the teachers contended that the dis-trict court had erred in placing the burden of proofon them to show that their First Amendmentrights had been violated. The appellate court saidthat "the law in this Circuit is crystal clear that anon-tenured teacher alleging that he has been dis-missed for constitutionally impermissible reasons`must bear the burden . . . of proving that a wronghas been done by the collegiate action in not re-hiring him.' " The teachers then argw:d that even ifthey initially had the burden of proof, it shifted tothe school authorities once they had made a "suffi-cient circumstantial showing." The court disagreed,noting that under the law of the Circuit, neitherthe burden of going forward nor the burden ofproof shifts to the state until it has been estab-lished that the teacher was dismissed for the exer-cise of his constitutional rights.

The teachers also raised procedural issues in-cluding the lack of timely notice and the failure ofthe University to put them on notice of standardsfor continued employment. With regard to timelynotice, the court said that the law was compliedwith in that they were notified by December 15,and that the subsequent district court injunctiondid not alter the fact that they were notified of theintended termination of their employment. As tothe second point, the notice of standards for con-tinued employment, the appellate court said therewas nothing in the decisions of the Circuit to re-quire the procedure suggested by the teachers. The

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final procedural complaint was the alleged bias ofthe committee members and the lack of a pro-cedure to challenge that bias and other allegeddefects. The district court declined to rule on thisallegation because the teachers had received a fullcourt hearing. The appellate court upheld thisruling.

The teachers also raised two factual conten-tions on appeal. First, that the facts did notsupport the University's stated reason for non-renewal. The court disagreed with this contention.It concluded that the record amply supported thelower court's findings that the action taken by theUniversity was "altruistically motivated" tostrengthen its faculty in order to meet require-ments and that it was attempting to hire personswith doctorates in as many departments aspossible. The court also found no evidence tosupport the contentions of the teachers that theywere fired for their anti-administration activities.Concluding that the testimony and evidencesupported the findings of the district court, theappellate court affirmed its decision.

Arizona

Kaufman v. Pima Junior College Governing Board484 P.2d 244Court of Appeals of Arizona, Division 2,May 4, 1971.

The former dean of administration of PimaJunior College had been hired there in early 1968for that year and then rehired for fiscal 1969-70.The board also gave a tentative commitment forfiscal 1970-71. However, no written contracts wereever issued. His employment proceeded withoutincident until September 16, 1969, at which timehe was requested to submit his resignation. Herefused and did not leave until he was locked outof his office and his salary stopped. Suit was thenbrought to force the college to reinstate him to hisposition for the balance of the 1969-70 fiscal yearand to recognize his contract for the 1970-71 fiscalyear. He also sought to compel the college to issuehim a statement of reasons for dismissal for the1970-71 fiscal year and a hearing on those reasons.The trial court dismissed his petition and the ad-ministrator appealed.

The first claim of the administrator on appealwas 'that his dismissal was in violation of the stateteacher tenure act. The appellate court noted thatthis act refers to two types of teachers, tenuredand probationary, but that the administrator wasnever hired in a teaching capacity of any kind.Therefore, the law did not apply to him. The court

said further that even assuming that he was a pro-bationary teacher, the law did not apply to juniorcolleges organized under the State-County JuniorCollege Program.

The next contention of the administrator wasthat the board of the junior college failed tocomply with the state board of directors of juniorcolleges standards on tenure. These standards re-quired the governing board of junior colleges toestablish a policy to protect staff members fromunreasonable dismissal, including a written state-ment of reasons for dismissal. On this issue, thecollege officials argued that the state board ofdirectors for junior colleges had no governingpower over them and no power to impose thisstandard of tenure. The court found that thepowers of the state board were broad enough toimpose the standard. The college then argued thatit had the absolute right to discharge an employee.In rejecting this argument, the appellate courtnoted that state law provides that a district boardshall have the power to "remove any officer oremployee when in its judgment the interests ofeducation in the state so require." Thus, the courtsaid, the district board is given the authority to useand exercise its judgment and this means "discre-tion exercised, not arbitrarily or willfully, but withregard to what is right and equitable under thecircumstances and the law." The court was of theopinion that the state board standards of tenurewere compatible with the state law.

The administrator had complained that he wasnot given a written statement of reasons for hisdischarge nor a hearing on those reasons. He soughta writ of mandamus to force the college officials toprovide these. The appellate court held that hisaction was premature since inherent in a writ ofmandamus is that it is issued to force performanceof a ministerial duty and the person seeking thewrit must first demand performance of that duty.The court believed that inherent in the state boardpolicy of standards on tenure was the right to ahearing before the junior college board but that thehearing must be requested and is not automatic.Since there was no evidence that the administratorhad ever requested the hearing, the writ could notbe issued. And since there was testimony that thereasons for dismissal were given orally, the courtsaid that the administrator should have requestedthe written reasons prior to bringing suit.

In rejecting the final argument of the teacherthat he had a common law right to a hearing, thecourt stated that the cases cited by the administra-tor to support his contentions applied to teachersand he was not a teacher. Because the appellatecourt was of the belief that the suit was premature,

the lower court dismissal of the petition was af-firmed.

Arkansas

Cooley v. Board of Education of Forrest CitySchool District, Forrest City, Arkansas327 F.Supp. 454United States District Court, E.D. Arkansas, E.D.,April 27, 1971; reversed on appeal, 453 F.2d. 282U.S. Circuit Court of Appeals for the EighthCircuit, January 6, 1972.

A black junior high-school teacher sued theschool board, seeking a declaratory judgment as tothe legal rights and relationship of the parties, aninjunction to reinstate him, and damages for lostearnings. The teacher had been employed in thedistrict schools since 1957 as a social studies teach-er. He was also a minister in a local church andvery active in various local civil rights groups.

In March 1969, his contract was terminated bythe school board upon the recommendation of thesuperintendent. The basis was his failure to co-operate, fostering of organizations in the classroomsponsored by outside agencies, refusing to complywith the requirements, rules, recommendations andguidelines of the school district, and other of-fenses. The question before the court was whetherhis termination was for the reasons alleged by theschool board or as the teacher alleged because ofhis activity as a civil rights proponent and his con-tinued activity outside the classroom in the civilrights field. If his termination was for the reasonshe had alleged, the teacher was entitled to rein-statement and damages.

In reviewing the evidence, the court found thatthere had been continuous difficulty between theteacher and the superintendent and the schoolboard for over two years. The teacher's civil rightsactivity was not limited to his statements, con-ferences, and activities in his church and outsidethe school, but had become "part and parcel of hisactivity in the classroom and on the schoolgrounds." Also, the teacher was a probation officerof the state court and insisted on wearing his badgeof authority in the classroom despite the superin-tendent's orders to the contrary. The teacher andthe superintendent had had numerous conferencesover the 'preceding two years, and although theevidence was in conflict, the court found that theteacher "continued to conduct organizationalmeetings in the classroom with outside adult citi-zens and representatives of agencies contrary to theregulations and continued warnings of the superin-tendent, which interfered continuously with the

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classroom activity and culminated in frustration inthe classroom and on the campus." The court con-cluded from all of the testimony that regardless ofthe teacher's determination in his field, there wasno justification for carrying his deep feeling to theclassroom and to the point of defiance and in-subordination while engaged in his duties as a class-room teacher.

Finding that the termination of the teacherwas for good cause due largely as the result of theteacher's own actions and not as a result of in-fringement of his constitutional rights, the courtdeclined to order his reinstatement and dismissedthe complaint.

NOTE: This decision was set aside by the U.S.Circuit Court of Appeals, Eighth Circuit, onJanuary 6, 1972 (453 F.2d 282), on the groundsthat the teacher was deprived of procedural dueprocess in that he was summarily dismissed in mid-term without notice of reasons for his dischargeand a reasonable opportunity to explore fully whythe mid-term discharge was appropriate. The ap-pellate court held that absent a countervailing stateinterest of overriding significance (which the courtfound was not present in this case), a teacher dis-missed for cause' during the school year is entitledconstitutionally to a notice of reasons for the dis-missal and a reasonable opportunity for a hearingat which the teacher is able to give testimony andconfront and question adverse witnesses. In theopinion of the court, procedural due process isnecessary because "a mid-year discharge increasesthe economic hardship and renders even greater thelikelihood that subsequent employment oppor-tunities will be significantly circumscribed."

The appellate court ruled that the teacher wasentitled to a declaration that his discharge was con-stitutionally invalid; that he was entitled to rein-statement to his former position, and if that posi-tion was unavailable, to a comparable position inthe school system; and to a determination by thedistrict court as to whether he was damaged by hisdismissal and if so, the amount of the damage andas to whether he was entitled to attorney's fees andif so, the amount thereof.

California

Auerbach v. Trustees of California State Colleges330 F.Supp. 808United States District Court, C.D.California, August 18, 1971.

A professor at San Fernando Valley StateCollege sued the president of the college and state

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college officials to enjoin the decision of the presi-dent not to renew his contract. During his secondyear of employment the professor was notifiedthat his contract would not be renewed for the1971-72 academic year. The decision not to renewwas made following a series of negative recommen-dations from the various committees that partici-pate in the consultative process with regard to re-appointment of probationary employees.

The professor attempted to obtain a statementof the reasons for the action and a hearing on thosereasons. There was a grievance procedure open tothe professor which he did not utilize because ofthe school officials' refusal to provide him withreasons for his termination and the inability of thegrievance procedure to assure that he would beable to secure these reasons by filing a grievance.

The refusal of the college officials to supplythe reasons was based in part on the applicablerules and regulations which only required that anontenured employee in his second year benotified prior to December 1, of his non-reap-pointment for the next school year.

The court held that the refusal of the collegeofficials under color of state law to supply the pro-fessor with the reasons for his non-re tents n andwith a fair and impartial hearing whereat he couldseek to establish through evidence that the reasonsgiven for his dismissal were constitutionally imper-missible, untrue, or otherwise inappropriate, was"arbitrary and capricious, and constituted a denialof due process to plaintiff within the meaning ofthe Fourteenth Amendment." A permanent injunc-tion was issued directing the college officials tosupply the professor with a statement of reasonsfor the decision not to reappoint him and accordhim tenure status and to provide him with a hear-ing. The court retained jurisdiction of the case.

Governing Board of Nicasio School District ofMarin County v. Brennan95 Cal.Rptr. 712Court of Appeal of California, First District,Division 3, June 24, 1971.

The governing board of the school district fileda complaint against a teacher seeking her dismissal,and the teacher sought a writ of mandamus toforce the board to re-employ her for the nextschool year. The trial court entered judgment forthe board and the teacher appealed.

During the 1967-68 school year, the teacherwas a probationary employee in the school district.On September 27, 1967, she executed an affidavitin support of another person convicted of posses-sion of marijuana and related offenses. The affida-

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vit set out that the teacher had long used marijua-na, almost daily with only beneficial results. Theaffidavit immediately received publicity, and thetrial court found that the teacher's students soonknew of its contents. On October 11, 1967, theboard adopted a resolution to suspend the teacherand after she demanded a hearing, filed a com-plaint to dismiss her. On March 14, 1968, while thecomplaint was still pending, the school districtserved notice on the teacher that she would not bere-employed for the following year.

The teacher contended that the "immoral con-duct" as applied in this case was unconstitutionallyvague. The court cited the California SupremeCourt decision, Morrison v. State Board of Educa-tion (461 P.2d 375) wherein the court said:"Terms such as immoral or unprofessional con-duct or moral turpitude stretch over so wide arange that they embrace an unlimited area of con-duct. In using them the legislature surely did notmean to endow the employing agency with thepower to dismiss any employee whose personal,private conduct incurred its disapproval. Hence thecourts have consistently related the terms to theissue of whether, when applied to the performanceof the employee on the job, the employee has dis-qualified himself."

Thus, the court said, the term "immoral con-duct" is not unconstitutional in itself, and if thereis evidence of unfitness to teach, it is not unconsti-tutional as applied to the instant case. The trialcourt had found as fact that in her affidavit theteacher did not merely advocate that the laws pro-hibiting marijuana be changed but stated that shehabitually violated these laws. No evidence was of-fered as to the effect this admission had upon theteacher's pupils since she had been suspended sosoon after the contents of the affidavit becameknown. However, there was evidence offered onthe likely effect of the teacher's conduct on herpupils. While there was a conflict of evidence onthis point, if there was substantial evidence to sup-port the trial court finding, the appellate courtwould be bound by that finding. The appellatecourt ruled that there was substantial evidence.

The teacher also contended that the signing ofthe affidavit was constitutionally protected freespeech. The appellate court did not agree, notingagain that the teacher had not merely advocatedchanging the law but admitted violation of the law,and then publicly so stated this fact in a way thatwould reach and affect her pupils. The court saidthe affidavit was not the basis of the action takenby the board, but merely evidence of her compe-tence or incompetence to teach. To this extent,the statement was unprotected by the Constitution

The final contention of the teacher was thatsince the school board had previously suspendedher it could not then institute proceedings torefuse to re-employ her. The court said that schooldistrict did not contest the teacher's right toappeal, and her request for a writ of mandatewould have been granted if the school district hadno jurisdiction to institute the proceedings againstthe teacher or if there was no substantial evidenceto support the finding of cause. However, findingboth jurisdiction and substantial evidence, the ap-pellate court affirmed the decision of the trialcourt.

Toney v. Reagan326 F.Supp. 1093United States District Court, N.D. California,March 29, 1971; as amended April 28, 1971.

Six probationary faculty members at FresnoState College brought suit under the federal civilrights act against officials of the state college sys-tem seeking declaratory and injunctive relief. Fivehad been notified that they would not be offeredappointments for the 1971-72 school year, thesixth, while reappointed, was notified that hiswould be a terminal appointment. A non-terminalreappointment for the fifth successive year is re-quired for tenure.

The teachers first argued that although theydid not have formal tenure, they did have an"expectancy of reappointment" and thereforewere entitled to the same notice and hearing as ifthey were tenured. The court disagreed with thisargument, saying that the "expectancy of reap-pointment" concept is applicable only in thoseinstances where the institution does not have aformal tenure system. Accordingly, the court heldthat the rights of these teachers must be deter-mined according to due process rules applicable tonontenured faculty, as distinguished from tenuredfaculty.

Although California law does not require ahearing for nontenure teachers, Executive Order112 provides for a grievance procedure for non-tenured teachers complaining about nonrenewal ofappointment. The teachers had initiated theirgrievance procedure under this order, but shortlythereafter, prior to any action being taken, filedthis court suit alleging that non-reappointment wasfor constitutionally impermissible reasons, theexercise of First Amendment rights, and that theprocedures provided by the order were inadequateand unconstitutional. If this last allegation was

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correct, the teachers would be relieved of theirresponsibility to exhaust their administrativeremedies prior to bringing suit.

Thus, the basic question before the court wasthe adequacy of the grievance procedure set out inExecutive Order 112. The order provided that thegrievant initiate the proceedings by giving writtennotice to the president of the college who thenselects, by lot, a panel of three members of thetenured faculty. Each side is permitted to exercisetwo peremptory challenges and unlimited chal-lenges for cause. The panel first determines wheth-er a hearing is required, and if so, notice is thengiven of the time and place. A tape recording ismade of the hearing. The grievant has the burdenof proof. The hearing is not open to the public,and is not conducted according to technical rulesrelating to evidence and witnesses. The findingsand recommendations of the panel are confi-dential, and the president of the college is boundby those findings except in rare instances, in whichcase he is required to state in detail his reasons foran opposite result. Where the president does notconcur in the result of the panel, an appeal to thechancellor of the system is provided.

The first complaint of the teachers was thatthe procedures were inadequate because they werenot in any sense a "trial." In response, the courtsaid that procedural due process does not require aformal "trial" conducted under judicially describedrules of evidence. Next the teachers complainedthat they were not permitted to be represented byan attorney. The court did not find presence ofcounsel to be an essential ingredient of a fair hear-ing. The teachers also complained that the pro-cedure left the decision up to the very person whohad dismissed them originally, the college presi-dent. On this point, the court stated first that thepresident did not fire or dismiss any of the teach-ers, he merely decided not to renew their annualcontracts. Referring to the grievance procedure,the court noted that the president was bound bythe decision of the panel except in "rare in-stances," in which case a further appeal was pos-sible, so that the final decision was not his alone.As to the teachers' contention that they were notgiven the reasons for nonrenewal, the court notedthat attached to their complaint were the ratingreports and recommendations of their departmentand deans indicating the reasons for nonrenewal.

The additional complaints of the teachers re-lating to the confidentiality of the transcript, thefact that the hearings were closed to the public,and the number of challenges permitted to panelmembers were found unpersuasive by the court.Accordingly, the court held that the grievance pro-

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cedure was fair and adequate. The preliminary in-junction sought by the teachers was denied.

Colorado

Cblorado Civil Rights Commission v. State,School District No. 1, Bent County488 P.2d 83Colorado Court of Appeals, Division 1,August 10, 1971.

A probationary teacher filed a complaint withthe state civil rights commission, charging that shehad been discharged from her employment becauseof her Spanish-American ancestry. Prior to the endof the 1967-68 school year the teacher had beeninformed by her principal that she would not berecommended for re-employment for the nextschool year and suggested that she resign. Theteacher did so and later asked that her resignationbe withdrawn. When the school board refused todo so, she filed the complaint with the civil rightscommission.

The commission determined that the teacherhad been unlawfully discharged. The school boardappealed this finding to the trial court which heldthat the commission did riot have jurisdiction be-cause the teacher had voluntarily resigned. Thecommission then appealed from that decision.

The appellate court held that the trial courterred in deciding that the commission did not havejurisdiction. While the teacher had resigned, shewould not have done so if the principal had nottold her that she would not be rehired. The teacherhad been constructively discharged and the com-mission did have jurisdiction.

The appellate court then considered the ques-tion whether there was substantial evidence tosupport the finding of the commission that theteacher had been discharged because of her an-cestry. Upon careful consideration of the entirerecord, the court found that the record disclosedneither direct evidence of racial discrimination norevidence of actions by the school ,board fromwhich a fair inference of such discrimination couldhe drawn. In fact, there was substantial evidencethat a legitimate reason existed for discharge. Forthis reason the judgment in favor of the schoolboard was proper and was therefore affirmed.

Delaware

Pierson v. De La Warr School District282 A.2d 656Court of Chancery of Delaware, New Castle,September 23, 1971.

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A nontenured high-school teacher sought ajudgment against the school district, declaring thathis contract had not been terminated and for amandatory injunction directing reinstatement. Dur-ing the teacher's initial year of employment he wasnotified that his re-employment for the 1971-72school year would not be recommended at a forth-coming board meeting. He attended and partici-pated in that board meeting, but a decision on hisre-employment was not reached. Thereafter, onMay 22, 1971, he wrote to the board requesting ahearing. In response he received notification thatthe board had met on May 26, and decided not toproceed with his year-end termination. Instead, hisservices would be terminated during the schoolyear for incompetency and neglect of duty, and hewould be suspended immediately. His request for ahearing was denied.

The court did not consider the teacher's con-stitutional arguments regarding due process, butbased its decision on the two statutes applicable tothe controversy. One statute provided for the ter-mination of any teacher during the school year. Itstated that such teacher shall have the same rightto notice of the charges and a hearing and right ofappeal pursuant to the procedures specified in sec-tions 1412-1414 for termination of services at theend of the school year. Those sections by opera-tion of another section referred to discharge of ten-ure teachers. It was the position of the schoolboard that only tenure teachers have the right tonotice and a hearing; this teacher was not tenuredand, therefore, there was no requirement for ahearing.

The court disagreed with the school board'sinterpretation of the statutes, holding that anyteacher dismissed during the school year, includinga nontenured teacher, was entitled to the protec-tion of the statute.

The court said that any ambiguity in thestatute should be resolved in favor of a hearing fora teacher dismissed during the year, whether ten-ured or not, since dismissal amounts to terminationof contract for cause and, "considering the circum-stances, there is obviously much more potential forpermanent damage to reputation and an oppor-tunity to earn a livelihood when dismissal occursduring the year than there is when a contract issimply not renewed at the end of the year."

Finally, as to what relief would be appropriate,the court decided to grant the motion of theschool board to dismiss the suit on the conditionthat it promptly make available to the teacher ahearing and all of the procedural rights to which heis entitled under the statute.

Florida

Johnson v. Board of Public Instruction ofCollier County, Florida241 So.2d 445District Court of Appeal of Florida,Second District, December 4, 1970.

A nontenure, elementary-school teacher whosecontract was not renewed for the 1969-70 schoolyear brought suit against the board, seeking adeclaratory judgment as to her rights to reappoint-ment. The trial court granted the motion of theboard to dismiss the teacher's complaint on theground that she had failed to allege any facts whichindicated that the board had a duty to re-employher and the teacher appealed.

The teacher had been employed by the schoolsystem for three years. She alleged that she hadfulfilled all of the requirements for tenure, namely,educational qualifications, efficiency, capabilities,character, and capacity to meet the educational re-quirements of the community. Also, she had beenrated "above average" by her principal and by twosupervisors of the school system. The teacherfurther alleged that despite these recommendationsthe superintendent failed to recommend her forcontinued employment and that such failure wasdue to arbitrary discrimination, capriciousness, un-reasonable grounds, or mere personal preference bythe superintendent.

The appellate court held that the complaint ofthe teacher contained sufficient allegations of fact,which if proved, would show that she was deniedre-employment for a reason or condition whichwas discriminatory, capricious, or unreasonable.Therefore, the order of the trial court dismissingthe teacher's complaint was reversed and the caseremanded for further proceedings.

Georgia

Callaway v. Kirkland320 F.Supp. 1135United States District Court, N.D. Georgia,Atlanta Division, December 29, 1970.

A high-school teacher brought suit againstClayton County school officials, alleging that hewas dismissed from his teaching position in viola-tion of his constitutional rights under the First andFourteenth Amendments. Both parties moved forsummary judgment.

The teacher had been employed in the schoolsystem since September 1965. On March 17, 1970,his principal advised him by a letter that a decisionon the renewal of his contract was being withheld

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pending further consideration. On March 19, 1970,the superintendent informed the teacher that hisservices were terminated as of that date for sixenumerated reasons. These were telling off-colorjokes and using profanity in the classroom, usingPlayboy magazine as a teaching aid, using a certainfilm, displaying a negative attitude, and failing tofollow the set curriculum. The teacher allegedlywas summoned from his classroom and instructedto remove himself and his personal belongings fromthe premises immediately. Subsequent to his dis-missal the teacher brought this action in lieu of anyappeal to local school authorities.

The court found nothing in the record toindicate that any type of meaningful notice orhearing in accord with the requirements of dueprocess was provided to the teacher. Under theauthority of Ferguson v. Thomas, (430 F.2d 852)the court did not believe that the case was ripe foradjudication. That case held that there should be afull development of the merits of a controversythrough notice and a hearing prior to a federalcourt suit. Consequently, the court remanded thecase to the county board of education for com-pliance with minimum standards of due process asdescribed in Ferguson, including notice and a hear-ing.

Illinois

Fooden v. Board of Governors of State Collegesand Universities268 N.E.2d 15Supreme Court of Illinois, January 25, 1971;rehearing denied, March 31, 1971. Certioraridenied, June 29, 1972, U.S. Supreme Court(41 U.S. Law Week 3002).

While in their second year of employment atChicago State College, two probationary assistantprofessors were notified in November 1968 thattheir contracts would not be renewed for the1969-70 school year. The professors and the CookCounty College Teachers Union sought to have theboard of governors review the procedures followedin making this determination. In April 1969, theboard did review the procedures and approvedthem. The professors then brought suit, allegingthat the procedures used in notifying them andremoving them from the faculty violated the gov-erning board rules, policies, and bylaws and thefaculty constitution; that the procedures usedviolated the terms of their individual contracts; andthat they were removed in violation of their con-stitutional rights of free speech and due process.

GI

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The board filed a motion for summary judg-ment supported by an affidavit reciting the rightsof probationary teachers. This was limited tonotice by December 1, of any year after the firstyear of employment that the probationary teacherwould not be continued in employment after theend of the current academic year. The affidavitalso set out that only the board's bylaws, governingpolicies, and practices were applicable to questionsinvolving the re-employment of probationaryteachers, and the faculty constitution of ChicagoState College was not binding on the board or itsexecutive officers. The trial court found no issueof material fact and granted summary judgment infavor of the board.

The professors and the union appealed. Theyargued that summary judgment was improperbecause there were unresolved issues of fact, par-ticularly whether the teachers were removed be-cause of their union activities and expressions ofviews on public education. On the other hand, theboard argued that the failure of the teachers to filea counter-affidavit estopped them from challeng-ing for the first time on appeal the sufficiencyof the board's affidavit. The board reasserted thatits sole obligation to the teachers was to notifythem of nonrenewal by December 1 and there wasno obligation to notify them of the reasons fornonrenewal.

The appellate court concluded that summaryjudgment was proper because of the failure of theprofessors to file responsive pleadings or a count-er-affidavit in effect constituted an admission ofthe facts contained in the board's affidavit. Addi-tionally, the court held that the professors' un-verified complaint, alleging on information andbelief that they were not re-employed because oftheir union activities was insufficient to raise atriable issue of fact. The court said that for theprofessors to contend that such information wasnot available to them was irrelevant because rulesof the state supreme court specifically provided forsuch exigency.

The court also rejected the argument of theprofessors that the board had a duty to providethem with a specific statement of reasons for thedecision not to renew their contracts under thefaculty constitution of the college and other docu-ments. The court pointed out that the professors'contracts were specifically made subject only tothe bylaws, policies and practices of the governingboard and thus the sole duty of the board was toprovide the notice of nonretention within the re-quired time. Accordingly, the decision of the trialcourt in favor of the board was affirmed.

NOTE: The Supreme Court of the United Statesdenied a review from this decision.

Hopkins v. Board of Education of theCity of Chicago330 F.Supp. 555United States District Court, N.D.Illinois, E.D., August 25, 1971.

A certified but nontenured teacher broughtsuit under the federal civil rights act against theboard of education and the city of Chicago, seek-ing damages and injunctive relief. The teacheralleged that he was terminated for the exercise ofhis First Amendment rights in violation of the Con-stitution.

At the time the teacher's services were discon-tinued, he was serving as a day-to-day substitute ina high school. The school board asserted that theteacher was terminated for failure to perform hisduties on May 20, and 21, 1971, and not for acritical speech he had made the week before. Thecourt agreed with the board that there was noevidence of a connection between the speech andthe termination.

However, the teacher contended that the lackof any real reason for termination would lead tothe inference that it was because of the speech.The question before the court was whether theteacher had adequately performed his duties on thedays in question. It appeared from the evidencethat during the two days in question.there was aneffective student boycott and the confused situa-tion resulting therefrom was aggravated by a seriesof fire alarm bells causing students and faculty tospend considerable time in vacating and re-enteringthe building. Because of the boycott, the principalhad specifically instructed all teachers to eitherattend class or leave the building. On May 21, theprincipal asked the teacher to either "follow theprogram" or leave. The teacher responded that hewould decide later what he was going to do. Theteacher was then told to report "downtown." Thecourt found from the evidence that the schoolboard had reason to believe that the teacher wasnot following the prescribed program of teachinghis classes and that lie had failed to show an uncon-stitutional and ulterior motive for the action of theschool officials.

The teacher then contended that he wasdenied procedural due process in that he was notgiven a more specific statement of reason for histermination and a more complete review before itbecame final. The teacher had met with thedirector of teacher personnel and several otherschool officials and had two union representatives

present with him. It was the opinion of the courtthat he was accorded as much due process as theFourteenth Amendment entitled him to. The courtsaid that although the procedure in this instancemay have been somewhat peremptory, it must beremembered that the teacher was a day-to-daysubstitute without tenure and that he was toldspecifically why he was being terminated. Also,there was a higher review of the principal's decisionto terminate him. The court agreed with theteacher that he should not be terminated even as anontenure teacher for reasons that were calculatedto interfere with his constitutional rights to freespeech and that prior to termination, he should beadvised of the reasons and be given a reasonableopportunity to present his side of the matter toresponsible school officials. However, to obtainrelief under the civil rights statute, the teachermust prove that he had been deprived of a consti-tutional or statutory right by the action of theschool board. The court concluded that the teacherfailed to do so and, therefore, could not recover.

Shirai v. Thomas447 F.2d 1 025United States Court of Appeals, Seventh Circuit,September 2, 1971; rehearing deniedSeptember 24, 1971. Judgment vacated, U.S.Supreme Court, June 29, 1972.(41 U.S. Law Week 30 0 1).

(See Teacher's Day in Court: Review of 1970, p.38.)

A nontenure high-school teacher of Germanwas notified during her second year of employ-ment that she would not be recommended for re-employment. The reason given for the proposedaction was that she had failed to coordinate herteaching with that of the other German teacher sothat students would not be handicapped in trans-ferring at the end of a semester. There was adispute as to whether this had previously beendiscussed with the teacher and also whether shehad been told that she could attend the boardmeeting at which the decision would be made onthe renewal of her contract and give her position.The teacher did not attend the meeting.

The, teacher brought suit under the federal civilrights act, alleging that the action of the boarddeprived her of her constitutional rights. The trialcourt noted that the teacher had been given thereason for the action of the school board and con-cluded that it was immaterial whether she had beentold she could attend the board meeting and havean opportunity to explain and support her posi-

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tion. Summary judgment was granted in favor ofthe board.

On appeal the appellate court referred to itsdecision in Roth v. Board of Regents which heldthat a nontenurcd university professor was consti-tutionally entitled to reasons for nonretention anda hearing at which he could respond. The appellatecourt held that the same principle applied to ahigh-school teacher, and, therefore, summary judg-ment was improper because there was an issue as towhether the teacher was offered a hearing at whichshe could respond. As in Roth, the court said, thetest is one of balancing the public school's interestin selecting its permanent teaching staff against theprofessional reputation, employability, and careerinterests of the teacher in retaining her job. Ac-cordingly, the appellate court held that the teacherwas entitled not only to the statement of reasonswhich she did receive, but also to notice of a hear-ing at which she might respond to the stated rea-sons.

In her arguments, the teacher sought to havethe court go further than the requirements ofRoth. She sought to have the court rule that shecould not be dismissed for failure to coordinate herteaching unless the school board could show that ithad defined in advance the standard of conductrequired and had informed the teacher of it. Theappellate court disagreed, noting that a teachermay be assumed to be competent in matters ofclassroom performance, and "the school must haveconsiderable freedom to refuse to retain a proba-tionary teacher who does not meet imprecise,though nonetheless valid, standards of com-petence." In addition, the appellate court agreedwith the district court in Roth in rejecting advancespecification of standards.

The teacher also sought a type of hearing thatwould impose a greater. burden on the school boardand one that would be before an independenttribunal. The appellate court found no reason whythe hearing before the board would not be ade-quate and again agreed with the district court inRoth that the burden of proof was on the teacher.

The summary judgment in favor of the schoolboard was reversed and the case remanded forfurther proceedings.

NOTE: An appeal from the decision in this casewas filed with the Supreme Court of the UnitedStates. On June 29, 1972, the court vacated thejudgment and remanded the case to the lower courtfor further reconsideration in the light of the deci-sion in Roth v. Board of Regents, decided that day.(See p. 80 of this report.)

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Simcox v. Board of Education of LockportTownship High School District No. 205,Will County, Illinois443 F.2d 40United States Court of Appeals, Seventh Circuit,May 12, 1971.

A teacher employed as a high-school guidancecounselor, appealed from an adverse lower courtdecision in his civil rights complaint against theschool district. During his second year of employ-ment the teacher had received written notice thathis contract would not be renewed for the nextyear, thereby denying him tenure under state law.The teacher brought suit, charging that his consti-tutional rights under the First Amendment hadbeen violated.

The principal thrust of the teacher's complaintwas that the four reasons given by the school boardfor nonrenewal were untenable and, therefore, hemust have been terminated because of the exerciseof his constitutional rights. The given reasons were"resistance" to attend evening parent meetings,refusal to submit weekly guidance reports, refusalto participate in a photo project, and refusal toperform compensated extra duties in emergencysituations. There was evidence that other coun-selors were erratic in their attendance at the week-ly parents meetings and opposed to handing in theweekly reports. There also existed other areas ofdiscontent among the counselors in the school dis-trict. This counselor and another were the repre-sentatives to speak to the administration. Thiscounselor was also active in the local teachersunion and a member of the negotiating team. Itwas his contention that it was these activities thatcaused his discharge and not the reasons given bythe board.

The court found no evidence to indicate unionanimosity by the board but did find evidence toindicate refusal to perform extra duties by theteacher. The court quoted from the dismissalnotice given the counselor by the board: "Thereare many duties involved with being a contributingstaff member that surround the specific primaryfunction of the staff member. Such duties, whilenecessary in the total educational process, cannotbe written into a contractual obligation, butinstead depend on the professional attitude, ethicsand self direction displayed by the staff member incooperating with the administration in the schooloperation." The court found that the evidenceadequately supported the conclusion of the schoolboard that the teacher was dismissed because ofthis lack of self direction and cooperation in rela-tion to extra duties.

The final argument of the teacher, that he wasdenied equal protection of the laws, was foundwanting in merit by the court. Although othercounselors who shared his views were retainedwhile he was not, the court said that the recorddisclosed no evidence that they shared this coun-selor's view that he would not perform any dutiesnot written into his contract.

On the finding that the school board acted ingood faith and that no constitutional right of thecounselor had been violated, the judgment of thelower court in favor of the school district was af-firmed.

Kansas

Endicott v. Van Pelle?:330 F.Supp. 878United States District Court, D. Kansas,August 12, 1971.

A teacher in Unified School District No. 260was notified that his contract would not be re-newed for the 1970-71 school year. He broughtsuit against the school. superintendent and themembers of the school board, charging that hisnonrenewal was in violation of the equal protec-tion and due process clauses of the FourteenthAmendment and that jurisdiction existed under thefederal civil rights act. The thrust of the teacher'scomplaint was that the failure of the board to givehim notice of the reasons for his nonrenewal and ahearing on those reasons was arbitrary.

The school board asserted that it was immunefrom suit, that the teacher had no constitutionallyprotected right to continued employment, and thatno claim had been asserted against the individualschool officials. The defendants did not answer theallegations of fact in the teacher's complaint, andthis case was heard on their motion to dismiss thecomplaint.

The teacher had been employed by the schooldistrict for five years prior to being notified thathis contract would not be renewed. Under Kansaslaw, tenure is not available in districts the size ofthis one, but employment contracts continue fromyear to year unless the school board gives noticeprior to March 15 of the contract year of its inten-tion to terminate the contract. The teacher alleged,and it was not denied by school officials, that hehad been highly evaluated in the 1969-70 schoolyear and the sole reason for the nonrenewal of hiscontract was the superintendent's dissatisfactionwith the manner by which the teacher attemptedto discipline his son. The teacher further allegedthat the school district had in effect a "fair dis-

missal procedure policy" which required a hearingbefore nonrenewal of a teacher's contract.

To bring an action under the federal civil rightsact, two elements are necessary: first, that theaction complained of was done under color of statelaw, and second, that the action deprived a personof some constitutional right. In this instance thecourt said there was no doubt that the nonrenewalof the teacher's contract was done under color ofstate law. The remaining question was then wheth-er the teacher had alleged the deprivation of a con-stitutional right. Upon review of numerous cases ofconstitutional rights of teachers whose contractshad not been renewed, the court found a "certaindegree of confusion between determining, on theone hand, the existence of a constitutionally pro-tected right and, on the other hand, the degree towhich the established right should be protected,i.e., the quantum of procedural due process that isrequired in denying or terminating the right. Thecourt found it relevant that the applicable state lawprovided that a teacher's contract continues fromyear-to-year unless "written notice of intention toterminate," is given. This type of statute, the courtsaid, anticipated more than mere notice of termina-tion and gives teachers a certain degree of securityin their positions. The court concluded that theteacher had sufficiently pled the existence of aconstitutionally protected interest. This, the courtsaid, was not only the privilege of public employ-ment but also protection of the valuable inalien-able right to pursue one's chosen occupationcoupled with a right or interest of an expectancyof continued employment which could not bedenied without due process. The court found itunnecessary to determine the exact nature of theprocedures that the school officials had to makeavailable to the teacher in this instance since thiscase was before the court on the school board'smotion to dismiss. That motion was denied and thecourt directed that the matter proceed to trial onthe merits.

Louisiana

Hill v. Caddo Parish School Board250 So.2d 446Court of Appeal of Louisiana, Second Circuit,June 22, 1971.

A teacher sought a court order to compel theschool board to reinstate him as a teacher and topay his salary for the remainder of the 1970-71school year. The trial court dismissed the case, andthe teacher appealed.

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The teacher was employed for the 1969-70school year under a temporary certificate. He wasre-employed for the 1970-71 school year and wasissued another temporary certificate. On December4, 1970, he was notified that his employmentwould cease as of January 15, 1971, for the pri-mary reason that he was not a certified teacher.The teacher alleged that he, as a probationaryteacher, was not discharged in accordance withprovisions in the tenure law relating to discharge ofprobationary teachers. The school board main-tained that holders of temporary certificates werenot protected by the tenure law.

The appellate court agreed with the schoolboard's interpretation. The tenure law defines ateacher as one "who holds a teacher's certificateand whose legal employment requires such teach-er's certificate." Under state board of educationrules, a temporary certificate is issued for oneschool session only and employment of teachers inpositions where they are not regularly certified isauthorized upon recommendation of the employ-ing school superintendent who must certify thatthere is no certificated teacher available for theposition. After viewing the teacher tenure law, theappellate court found it clear that the protectionof the tenure law was not intended to apply topersons holding temporary certificates. The tenurelaw, the court said, protects a teacher in re-employ-ment fi--om year to year as well as from dismissalduring the year. A temporary certificate which isvalid for one year only, obviously did not carrywith it any right to re-employment.

The court held that the teacher did not havethe protection of the tenure law. Therefore, theschool board did not have to comply with the ten-ure law in dismissing the teacher. The decision ofthe trial court was affirmed.

Massachusetts

Mailloux v. Kiley323 F.Supp. 1387United States District Court, D. Massachusetts,March 22, 1971.

A high-school English teacher was dischargedbecause of his use of a certain taboo word in class.The district court issued a preliminary injunctionordering the teacher reinstated pending a trial onthe merits. The appellate court affirmed (436 F. 2d565). This case involved the merits.

On October 1, 1970, during a class discussionof a book, the teacher introduced the subject ofsociety and its ways as illustrated by taboo words.He then wrote a slang expression for sexual inter-

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course on the board and asked the class in generalto define it. The definition was supplied by avolunteer. The following day, the parent of afemale student, being erroneously informed that aparticular girl had been asked for the definition,complained to the principal who in turn asked thehead of the English department to investigate theincident. Following the interview with the head ofthe department the teacher was suspended by thesuperintendent.

A hearing was requested before the schoolcommittee. After the hearing the committee dis-charged the teacher on the general charge of "con-duct unbecoming a teacher" without making afinding as to any specific particular, includingwhether the teacher had called upon a particulargirl for the definition.

The court made additional findings of fact, in-cluding that the topic of taboo words had a limitedrelevance to the novel under classroom discussionand a high degree of relevance to the proper teach-ing of eleventh-grade basic English; that the wordin question was relevant to a discussion of taboowords; that eleventh-graders had sufficient sophis-tication to treat the word from a serious educa-tional viewpoint; that the teacher's action did nothave a disturbing effect on the class; that calling ona volunteer to define the word was reasonable; thatthe word is in books in the library; and that theopinion of experts differed on whether the actionof the teacher was appropriate and reasonableunder the circumstances and served a serious edu-cational purpose.

Turning to the question of law, the courtnoted that the Fourteenth Amendment recognizes"that a public school teacher has not only a civicright to freedom of speech both outside . . . andinside...the school house, but also some measureof academic freedom as to his in-classroom teach-ing." The court cited two cases involving academicfreedom for teachers, Keefe v. Geanakos (418 F.2d(19 69)), and Parducci v. Rutland (3 1 6 F,Supp.352, (1970)). One upheld the substantive right of ateacher to choose a teaching method which in thecourt's view served a demonstrated educationalpurpose. The other upheld the procedural right ofa teacher not to be discharged for the use of ateaching method not proscribed by regulation. Re-lying on both these cases, the teacher argued thatboth his substantive and his procedural rights pro-tected by the Fourteenth and First Amendmentswere violated by his discharge.

In view of the evidence of divided professionalopinion as to whether the teaching method used bythe teacher was proper, the court could not saythat the teacher's method was plainly permissible

in the constitutional context. Taking note of theage of the students, their level of maturity, andother factors relevant to the public school situa-tion, the court ruled "that when a secondaryschool teacher uses a teaching method which hedoes not prove has the support of the pre-ponderant opinion of the teaching profession or ofthe part of it to which he belongs, but which hemerely proves is relevant to his subject and stu-dents, is regarded by experts of significant standingas serving a serious educational purpose, and wasused by him in good faith the state may suspend ordischarge a teacher for using that method but itmay not resort to such drastic sanctions unless thestate proves he was put on notice either by a regu-lation or otherwise that he should not use thatmethod," This exclusive procedural protection, thecourt said, is afforded to the teacher not becausehe is a public employee but because "in his teach-ing capacity he is engaged in the exercise of whatmay plausibly be considered 'vital First Amend-ment rights.' "

Since in this case it was not claimed that anyregulation prohibited the method utilized by theteacher, nor could it be said that the teachershould have known that his teaching method wasnot permitted, it was a violation of due process forthe school committee to suspend and dischargehim on that account. Accordingly, the teacher wasentitled to continued employment through the197 0-7 1 school year. The school officials weredirected to expunge from his employment recordall notation of the teacher's suspension or dis-charge. The teacher was also awarded lost salaryfor the period his employment was discontinued.However, the court noted in conclusion that schoolauthorities are free to suspend a teacher who isusing teaching methods of which they disapproveuntil such time as he agrees to cease using suchmethods.

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Alailloux v. Kiley448 F.2d 1242United States Court of Appeals, First Circuit,September 23, 1971.

(See case digest immediately above.)

The school board appealed the decision aboveto the First Circuit Court. To support its position,the school authorities pointed to a statement in theCode of Ethics of the Education Profession thatthe "teacher recognizes the supreme importance ofthe pursuit of truth, devotion to excellence and thenature of democratic citizenship." The appellatecourt said that this standard, though laudable, is

impermissibly vague as notice to the teacher thathe should not have engaged in the activity com-plained of. This standard, the court continued,could not justify a post facto decision by theschool authorities that use of a particular teachingmethod is ground for discharge or other serioussanction, simply because some educators disap-prove of it.

In affirming the decision of the district court,the appellate court rejected the guidelines laiddown by that court for permissible teachingmethods. The appellate court was of the opinionthat "any such formulation would introduce moreproblems than it would solve." The appellate courtsaw "no substitute for a case-by-case inquiry intowhether the legitimate interests of the authoritiesare demonstrably sufficient to circumscribe ateacher's speech."

Rounzani v. Leestamper330 F.Supp. 1248United States District Court, D. Massachusetts,July 2, 1971.

A nontenured professor at Worcester StateCollege brought a civil rights suit against the presi-dent of the college and other college officials,alleging that their failure to reappoint him to hisposition for the 1971.72 academic year deprivedhim of due process under the Fourteenth Amend-ment. He sought a preliminary injunction restrain-ing the college officials from terminating his em-ployment until he had been afforded due processrights.

The teacher was in his second year of teachingat the college and, therefore, entitled to notifica-tion prior to December 15, if he was not to bereappointed. lie was first notified on March 1,1971, by the president that he would be re-em-ployed for the 1971 -72 academic year. Then onApril 16, his resignation was requested for1971-72; and he was informed that nonrenewal ofhis contract would be recommended. The reasongiven by the president was that he had receivedinformation contradicting representations made bythe teacher concerning the progress of his doctoralstudies. On May 14, 1971, the teacher was in-formed that his contract would not be renewedand was invited to attend a meeting with the presi-dent. He attended this meeting and presentedevidence on the progress his studies but nofurther action regarding his status was ever taken.Suit was then brought.

The teacher argued that he had been deprivedof constitutional rights to due process, while thecollege officials countered by stating that theteacher's injury, if any, arose from a contract

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dispute more properly litigated in state court. Inmaking a determination of the teacher's rights, thecourt noted that he was not tenured and, there-fore, was not entitled to the procedures affordedto tenure faculty; also, he had not alleged any con-stitutionally impermissible motive for his dis-charge. However, the court, found that the teacherwas in a markedly different position than he wouldhave been if notified of the nonrenewal on Decem-ber 15. Had he been notified on that date, hewould have been entitled only to a statement ofreasons for nonretention as set out in Drown v.Portsmouth School District. (See page 73 of thisreport.) The teacher contended that since he wasnot notified of nonrenewal by December 15, thepassing of that date operated to extend his con-tract, or at least justified an expectation of re-em-ployment on his part. The court was of the opinionthat the timing of his release placed him in a sub-stantially disadvantaged position vis-a-vis thosenotified of nonreappointment in the prescribedmanner, and to determine the precise extent of thisdisadvantage and its due process implications, itwas necessary to balance the competing interests ofthe teacher and the college. The court found thatthe college had an interest in maintaining a com-petent faculty, and that the teacher had twoarguably protectable interests: an expectancy ofcontinued employment under the facts involved,and the protection of his professional reputation.In light of the absence of specific procedures inthis case, the gravity of the charges made by thecollege and their necessary effect on the teacher'sprofessional reputation, the court held that theteacher's interests "clearly merit greater proceduralconsideration than has been afforded."

Concluding that due process requires a state-ment of charges and a hearing, the court grantedthe preliminary injunction sought by the teacher.Pending a hearing on the merits, the college of-ficials were enjoined from failing to renew theteacher's contract unless prior to its expiration hehad been provided with a particularized statementof the charges against him, an opportunity to beheard, with counsel, by the board of trustees, andnotice of that body's decision. Further, the courtordered expunged any notation of the terminationof the teacher's contract which may have beenmade in records of the college.

Michigan

Fucinari v. Dearborn Board of Education188 N.W.2d 229Court of Appeals of Michigan, Division 1,March 29, 1971.

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The state tenure commission directed theboard of education to re-employ a probationaryteacher as a tenure teacher. The trial. ,:ourt af-firmed this decision, and the board of educationappealed.

During her second year of service, the teacherwas notified on April 1, 1969, that she would notbe re-employed because of unsatisfactory per-formance. This letter was from the director of per-sonnel. State law requires that in the case of aprobationary teacher whose performance is un-satisfactory, the school board notify him at least60 days prior to the end of school of the unsatis-factory service and of discontinuance of services.In this instance, at an executive meeting of, theschool board in March, the director of personnelhad informally discussed this teacher's case andhad been told to send the 60day letter if theschool administrators still viewed the teacher's per-formance as unsatisfactory. It was uncontrovertedthat the board did not formally take final actionon the non-re-employment of the teacher until itsregular meeting of April 1 4, 1969, and admittedlythe teacher was never given any notification of thisfinal action. Since the last day of school was June1 3, this was not within the 60day period.

The court held that because of failure of theschool board to comply with the statutory provi-sions, the teacher was entitled to be employed forthe next school year. And having completed twoyears and been reappointed for the next year, theteacher attained continuing tenure status, and wasentitled to the protection of the teacher tenurelaw.

Weckerly v. Mona Shores Board of Education184 N.W.2d 32 3Court of Appeals of Michigan, Division 2,December 1, 1970.

The state tenure commission ordered that aprobationary teacher be returned to her employ-ment as a tenure teacher. The trial court vacatedthis order, and the teacher appealed. The teacherwas completing her second year of employment inthe school system when the superintendent recom-mended that she be placed on a third year of pro-bation because of unsatisfactory classroom dis-cipline, For the same reason the school boardvoted to terminate her contract at the close of the1967-68 school year, the end of the second proba-tionary year.

On April 8, 1968, the superintendent sent aletter by certified mail to the teacher, informingher that her contract would not be renewed. Thesame day the school principal orally informed the

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teacher of the same fact. The teacher was not athome when attempted delivery was made of thecertified letter, and a mail arrival notice was left inher mailbox. The teacher who was blind, testifiedthat she searched for the expected letter for thenext few days but did not find either the letter orthe mail arrival notice. The teacher actually re-ceived the letter on April 1 3, and it was read toher.

The state statute requires that probationaryteachers receive at least 60 days' written noticebefore the close of the school year that their ser-vices will be discontinued. In this case the sixtiethday before the close of school was April 9, 1968.

The appellate court rejected the arguments ofthe teacher that the applicable statute was uncon-stitutional, that she was denied procedural dueprocess, and that there was no basis for the deter-mination that her services were unsatisfactory. Thecourt concluded that the certified letter sent to theteacher by the board satisfied the 60-day statutorynotice requirement even though the teacher didnot receive the letter until 5 6 days prior to the endof the school term. In reaching this conclusion, theappellate court took notice of the fact that theteacher was given 61 days' oral notice and that theletter was mailed 60 days prior to the end of theschool year. The court held that the teacher hadnot attained tenure, and, therefore, the state ten-ure commission had no jurisdiction. The opinion ofthe trial court was affirmed.

Minnesota

Pearson v. Independent School District No. 716188 N.W.2d 776Supreme Court of Minnesota, June 25, 1971.

A probationary teacher who was not re-em-ployed for the 1970.71 school year sued for adeclaratory judgment that he had a contract forthat school year because of the failure of the boardto comply with state law regarding probationaryteachers.

It appeared that the teacher had been notifiedprior to April 1, 1970, that his contract would notbe renewed for the following school year. He thenrequested the reasons for this action and received aletter from the board stating them, including in theletter the statement that "adequate supervision hasbeen furnished your classes and several conferenceswith your principal have been conducted." It wasthe position of the teacher that he had not beenfurnished "adequate supervision" and that understate law such must have been provided and, there-fore, he had a contract for the next school year.

The school board maintained that it had compliedwith all requirements of state law relating to thenonrenewal of his contract and denied that he wasentitled to continued employment. The trial courtruled in favor of the school board. The teacherappealed.

The issue on appeal was whether state law re-quired a hearing on the question of whether "ap-propriate supervision" was furnished to a proba-tionary teacher before a school board may decidenot to renew his contract. State law provides thatthe contract of a probationary teacher may or maynot be renewed "as the board shall see fit" andrequires that if a probationary teacher whose con-tract is not renewed shall request the reasons forthe action, "the school board shall give the teacherits reasons in writing, including a statement thatappropriate supervision was furnished describingthe nature and extent of such supervision furnishedthe teacher during his employment by the board."The teacher argued that it was the legislative intentthat the board furnish supervision and, therefore, ifthe teacher challenges the school board statementthat supervision was furnished, there must be ahearing on the issue.

The appellate court did not agree with theteacher, since the statute says that the contract ofa probationary teacher may or may not be renewedas the school board sees fit. Additionally, thestatute specifically sets out when hearings will beheld and this instance did not fall under anycategory requiring a hearing.

Holding that the state legislature did notintend to provide a hearing to a probationaryteacher whose contract was terminated, and thatthe board of education had fully complied withstate law regarding nonrenewal of probationaryteachers, the appellate court affirmed the decisionof the lower court in favor of the board of educa-tion.

Missouri

Long v. Board of Education of the Cityof St. Louis331 F.Supp. 193United States District Court, E.D. Missouri, E.D.,June 25, 1 9 71; judgment affirmed 456 F.2d 1058,U.S. Circuit Court of Appeals for the EighthCircuit, March 13, 1972.

Two probationary teachers brought a civil

rights action, charging that they were denied re-em-ployment for constitutionally impermissible rea-sons. One teacher was project director of adiagnostic and adjustment center funded under

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Title III, ESEA, and the other teacher was a staffmember of the center. The director of special edu-cation of the school system had supervisory con-trol of the center. Both teachers were initially em-ployed for the 1967-68 school year andre-employ-ed for the 1968 -69 school year. However, by letterdated April 7, 1969, they were informed that theircontracts would not be renewed for the nextschool year. Under Missouri law there is a three-year probationary period.

Plaintiffs' position was that the staff memberwas not rehired because of a critical letter shewrote to a state representative and that the direc-tor of the project was not rehired for refusing todischarge the staff member. The difficulties leadingup to the letter began when the center was in-formed that federal funds would be available for a1968 summer project and was asked to draw up aprogram. The program was prepared by the staffmember and presented to the director of specialeducation. He reduced the total amount of the re-quest by $10,000 by deleting some items. Never-theless, when the project was put into final forthby the two teachers, it contained all of the originalitems. The supervisor was never informed of thisaction. The state department of education uponconsultation with the director of special educationreduced the project by deleting the same itemspreviously cut out. The project was satisfactorilyconducted by the staff member, but the requiredevaluation at the end of the summer was quite late.

The following year, funds again became avail-able for a summer project, and again the supervisordirected the two teachers to prepare a project forsubmission. The project was prepared by the staffmember, but was submitted late with the resultthat it was not funded. The supervisor had askedfor a copy of the program when it was completed,but this request was ignored by the staff member.Several days after the program was submitted, astate department official asked the staff member ifthe project could function on less than was re-quested, since there was limited money available.The letter to the state legislator was written thefollowing day,

The court found it apparent from the evidencethat neither of the two teachers could adjust to thefact that the director of special education was theirsuperior and that they were responsible to him.The court said that their conduct followed apattern of either failing to follow explicit direc-tions of their superior or of dragging their feet inorder to avoid timely consultation with him. In theevaluation of the project director which thesuperior made at the end of her first year, note wastaken of the need for improvement in certain areas,

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including compliance with school-board rules,regulations, and policies, and filing required reportspromptly and accurately. The unsatisfactory ratingat the end of the second year was based on a deter-mination by the superior that the project director"has continued to refuse and accept and follow theadministration's decisions and policies made by theOffice of Special Education to which she wasdirectly responsible."

As for the staff member, her satisfactory ratingat the end of the first year was prepared by theproject director and accepted by the superior whohad no personal contact with her. By the end ofthe second year, the supervisor was convinced thatit would be undesirable to reemploy her. It wasnot disputed that the letter written to the staterepresentative had a bearing on the teacher's dis-charge, but the decision was not based on the con-tents of the letter per se, rather upon what it dis-closed. The teacher wrote the letter on officialschoolboard stationery and signed it in her officialcapacity, so that it could reasonably be concluded,the court said, that she was undertaking to speakon behalf of the school board as its representativewithout consulting its policymakers and thereby"evidenced her intent and purpose of usurpingauthority that did not belong to her." The courtsaid further that throughout the letter the teachercontinually used "we" and "our" as if speaking onbehalf of the school board. The court concludedthat the nature of the letter was such that, to theextent that it influenced the decision not to re-em-ploy the teacher, it did not fall within the constitu-tionally protected area of free speech and right ofpetition. While the court found that the teacherhad the right to express herself as an individual, shedid not have the right to speak for the board or tomisrepresent its position.

The court also concluded that the refusal ofthe director to discharge the staff member forwriting the letter was not the cause of the direc-tor's nonrenewal. The court held that the non-retention of the two teachers was not based onimpermissible constitutional grounds but ratherwas the result of good faith discretion by theschool superintendent in the light of the facts avail-able to him as disclosed by the recommendationsof the teachers' superior and his own appraisal ofthe situation. Judgment was entered in favor of theschool board.

NOTE: This decision was affirmed on appeal onMarch 13, 1972 (456 F.2d 1 058). The United StatesCourt of Appeals for the Eighth Circuit rejectedthe teacher's claim that the nonrenewal of heremployment was for constitutionally impermissible

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reasons. The court held that in the circumstancesthe letter she wrote to the state legislator was notprotected speech under the First Amendment.

Nebraska

A hern v. Board of Education of School Districtof Grand Island327 F.Supp. 1391United States District Court, D. Nebraska,April 20,1971; affirmed, U.S. Court of Appeals,Eighth Circuit, 456 F.2d 399 (February 29, 1972).

A nontenure teacher discharged during hercontract term brought suit under the federal civilrights act, seeking reinstatement and damages. Shealleged that her right to free speech, due process,and right to teach under the First, Fifth, and NinthAmendments to the Constitution had beenviolated.

The teacher had been employed as an eco-nomics teacher from September 1966 until her dis-charge in March 1969. She already had a contractfor the 1969-70 school year. Following her atten-dance at a civic institute summer seminar, theteacher became acquainted with a new teachingmethod, that o f inquiry. The teacher also becamemore aware of and sensitive to the area of studentrights, and this was reflected in her teaching. In thebelief that her consumer economics and economicsclasses were becoming too political, the teacherwas questioned about her teaching method inFebruary 1969. However, the basis for her dis-charge arose in March. While the teacher had beenaway a week at tending a seminar, a substitute wasemployed to teach her classes. On her return, herstudents reported that the substitute had nottaught the class as the teacher would have and inone class had seized a boy by the hair and slappedhim across the face. The teacher became quiteangry, referred to the substitute as a "bitch," andtold her students that if this happened again, shehoped that they would all walk out. Also on thatclay the teacher discussed the slapping incidentwith another of her classes and focused the stu-dents' attention on drafting a proposed schoolregulation regarding corporal punishment. Shewished to have the resolution presented to thehigh-school student council.

On March 19, 1969, the teacher was called to ameeting in the principal's office with other schoolofficials. There she was upbraided for her remarksabout the substitute teacher; told her educationalphilosophy did klot "fit in this school," that hermain function was to teach economics, anridirected that she return to her classroom and not

discuss the slapping incident any more and to gether classes under control. The teacher ignoredthese admonitions and the following day spent atleast one entire class discussing the incident, theproposed resolution, and the advisability of thestudents holding a preschool meeting the nextmorning. When this was reported to the principal,the teacher was again called in and informed thatshe was being suspended with pay until action wastaken by the board of education. After the meetingwith the school board, at which the teacher waspresent with counsel, the board voted to declarethe teacher's position vacant, her 1968-69 contractterminated, and her 1969-70 contract void for in-subordination.

The court had no difficulty in determiningthat the teacher had been accorded substantive dueprocess. There was reason for the action of theboard because of the insubordination of the teach-er arising from directives stemming from thecriticism in class of a fellow teacher in the slappingincident, her refusal to follow the directives of theprincipal to teach economics, and the steps takenby the teacher during classroom hours in seekingconsideration of a declaration of student rights.The court was persuaded that the exercise of aconstitutional right was not the basis for the discharge. Although a teacher, like any other citizen,has a right to express opinions on matters of publicconcern, the court said, still, it doubted that theteacher had "a right to express them during class indeliberate violation of a superior's admonition notto do so, when the subject of her opinions andconcerns is directly related to student and teacherdiscipline." The court held that while the teacherhad a right to express disagreement with the ad-ministration, she did not necessarily have a right toexpress that disagreement in the classroom when,as here, reasonable alternative means for expressionof dissent were available.

The matter of procedural due process wasmore troublesome to the court. A number of re-cent cases involving the nonrenewal of teachers'contracts, the court observed, had reached op-posite conclusions on the need for a statement ofreasons and a hearing. The court here also notedtwo cases of the Supreme Court of the UnitedStates involving procedural clue process, one of awelfare recipient, Goldberg v. Kelly (90 S.Ct. 1011(1970)), and the other of a cafeteria worker in amilitary establishment, Cafeteria and RestaurantWorkers v. McElroy.(81 S.Ct. 1743 (1961)). Theformer case held a hearing necessary before adenial of benefits, and the latter case held a hearingunnecessary. Because of the uncertainties thesecases produced in the mind of the court and the

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lack of a Supreme Court pronouncement in thearea of due process for teachers, the court hereheld, in accordance with the appellate court for thecircuit, that absent statutory or contractual re-quirements, there is no constitutional right to ahearing upon discharge with rights of cross-examination and confrontation of witness. Herethere was no contractual right to a hearing, but astatutory right did exist upon filing of a writtenrequest by the teacher whose contract is termi-nated. Since the teacher never requested a hearing,

judgment was rendered for the school board.

NOTE: On February 29, 1972, the United StatesCourt of Appeals for the Eighth Circuit affirmedthis decision, holding that the school board hadample cause to dismiss the teacher for insubordina-tion and that the lower court was correct indeciding that insubordination was the basis for thedismissal. 'The hearing provided the teacher wasadequate to insure her constitutional right to pro-cedural fairness and a meaningful hearing, thecourt held, since the teacher understood that thebasis for her suspension and dismissal was in-subordination by reason of her failure to complywith the school principal's instruction regardingrestoration of order and proper curriculum in herclasses, received advance notice of the proposedschool board hearing at which she appeared, andwas represented by counsel, and was permitted totestify and cross-examine the principal. (456 F.2d399)

New Hampshire

Chase v. Fall Mountain Regional School District330 F.Supp. 388United States District Court, D. New Hampshire,July 28, 1971.

A nontenure high-school English teacherwhose contract was not renewed for the 19 7 0-71year sued the school district and officials of thedistrict. He charged that the failure of the districtto renew his contract was a denial of his constitu-tional rights of freedom of speech and associationsince the decision was based in whole or in part onhis activities as negotiator for the teachers associa-tion and that his Fourteenth Amendment rights todue process were violated and that the action ofthe school board was arbitrary, discriminatory, andcapricious.

The teacher had been employed by the schooldistrict since the 1968-69 school year. During thatyear he was an active and outspoken member ofthe negotiating committee for the teachers associa-

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tion. During negotiations he issued press releasescritical of the school board which irritated itsmembers. Nevertheless, the teacher's contract wasrenewed for the 1969-70 school year. His principalhad strongly recommended that he be rehired andhad rated him very high in every category.

In the fall of 1969 the teacher was appointedchief negotiator for the teachers association. Asnegotiation proceeded, the teacher became dis-enchanted with the attitude of the school boardtoward a contract for the teachers and toward himpersonally. He ultimately stopped serving asnegotiator because he felt that the animosity of theboard toward him prevented him from being aneffective spokcman for the teachers. In January1970, a female student complained to the principalthat the teacher had been paying special attentionto her and had touched her. On cross-examinationit turned out that the girl had a poor academicrecord, had failed the teacher's English class, andhad talked to the daughter of a school board mem-ber about the teacher prior to her complaint. Afew days later the daughter, also a student, andanother student complained about the teacher toanother teacher. Their complaints were of a generalnature concerning allegedly offensive remarksmade in class by the teacher, and the first girl testified that the teacher had touched her.

There was additional student testimony re-garding rumors around the school about the teach-er's conduct in college and while teaching inanother town. There was no testimony as to whenthese rumors started but it was about the time ofthe complaints to the principal. The principalspoke with the teacher after each of the com-plaints. He also recommended that the teacher berehired and rated him excellent in every category,including "relationship with students."

The superintendent testified that he attemptedto check the truth of the rumors but got no results,and the rumors remained unverified. Ile also tes-tified that he received inquiries and complaintsfrom parents. Based on these factors he made thedecision not to renew the teacher's contract, alleg-edly because he had "lost his effectiveness as ateacher in the district." The court noted that thisrecommendation was made notwithstanding thatthe superintendent was unable to check the rumorsand had not talked to the teacher or to the girlswho had complained about him. The superin-tendent admitted that his recommendation of non-renewal was made on the complaints and rumors,and the recommendation would have been thesame whether they were true or false. At its nextmeeting, the school board accepted the recom-mendation and voted 5-2 not to renew the teach-

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er's contract. Three of the five board membersvoting for nonrenewal had not heard about thegirls' complaints or the rumors. The teacher wasnever explicitly given the reasons for this decision.He asked the board to reconsider but the boardrefused. In the light of these facts, the court foundit understandable that the teacher never requesteda hearing.

On the basis of the evidence, the court foundthat the teacher's dismissal was a result of both hisassociation activity, an exercise of constitutionallyprotected rights, and the complaints of the girlsand resulting rumors. The court said that the teach-er's negotiating activities clearly contributed towhat could only be termed a total disregard on thepart of the superintendent and the school board asto the truth of the complaints and rumors and thefailure of the superintendent and the board toassess their effect on the teacher's suitability. Evenif the testimony of the girls was to be believed, thecourt said, the facts fell far short of demonstratingany impropriety on the part of the teicher.

The court noted that there was rio doubt thatthe teacher could not be discharged because of theexercise of his constitutional rights of freedom ofspeech and association. When it is alleged that thedischarge is for that reason, the reasims for thedecision must be carefully examined to ascertainthat they are not a mere facade to conceal thatdischarge was for a constitutionally impermissiblereason. Since here the evidence disclosed that thereason given was not entirely a facade, the courtdisregarded the First Amendment involvement fora moment and looked at the other reasons to determine if the board's decision was constitutionallypermissible. According to the court, the issue thenbecame whether a nontenure teacher was protectedby the due process clause of the FourteenthAmendment from an arbitrary decision.

The court first looked at the case of Drown v.Portsmouth School District (435 F.2d 1182,(1970)), which was binding upon the court. Thatcase held that a nontenure teacher has no right to ahearing but does have a right to receive the reasonsfor nonrenewal of his contract. However, that deci-sion was to be prospective only and would notapply here since the decision not to renew theteacher's contract was made prior to Drown.Therefore, the school board did not violate pro-cedural due process. The court was of the opinion,however, that Drown recognized a right of re-covery for an arbitrary, discriminatory, or capri-cious dismissal of a nontenure teacher. Applyingthat to the present case, the court held that to"dismiss a teacher on the basis of uninvestigatedcomplaints and unverified rumors and to admit

that the decision does not depend on the truth orfalseness of the complaints or rumors is patentlyunjust, arbitrary and capricious." The testimony ofthe teacher's principal and immediate superior wasto the effect that the teacher had not lost his ef-fectiveness as a teacher. In short, the court said theaction of the superintendent and the school board,without even minimal investigation and withoutany concern for the truth, presented a classic caseof a violation of due process. Noting that Drownheld that a hearing is not required in the case of anon tenured teacher, the court did not construe thisto mean that a school board had an absolute rightto dismiss a teacher without an inquiry to deter-mine if legitimate grounds for dismissal existed.

Concluding that the reasons given by thesuperintendent for the nonrenewal of the teacher'scontract were patently arbitrary, the court foundthe inference overwhelming that the action of thesuperintendent and the school board was moti-vated primarily by the teacher's exercise of his con-stitutional rights of freedom of speech and associa-tion. Accordingly, the court held the action of theboard in discharging the teacher null and void asbeing in violation of the First and FourteenthAmendments. The teacher was entitled to all thebenefits of a 1 9 7 0-7i contract and to immediatereinstatement. The school" board was directed toexpunge any notation of the nonrenewal from theteacher's record. Judgment was entered against theschool district and individually against the superin-tendent and those members of the board whovoted to discharge the teacher for $2,550, theamount or lost salary and the costs of the courtaction.

Drown v. Portsmouth School District435 F.2d 118 2United States Court of Appeals, First Circuit,December 18, 1970.

A nontenure teacher appealed from the districtcourt dismissal of her suit against school officials.The teacher alleged that the failure of the schooldistrict to rehire her for the 1970-71 school yearwithout giving her reasons for the action and ahearing violated her constitutional rights under theFourteenth Amendment.

Under state law a nontenure teacher is given ahearing if dismissed during the school year, butnonrenewal requires notice only by March 15. Theteacher in this case had been given timely noticeduring her second year in the school district. Shehad sought but was denied a list of reasons and ahearing at which she might have an opportunity tochallenge the board's decision.

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The appellate court noted that courts aredivided on the issue of procedural rights applicableto nontenure teachers who are not rehired. Thecourt said that in determining what proceduresshould be required in the decision not to renew thecontract of a nontenure teacher, the court was re-quired to balance the interests of the school boardagainst the interests of the teacher to correct adecision based on mistaken or false facts, or tosupport a claim that he was not rehired for consti-tutionally impermissible reasons, or to know wherehis performance failed, or to minimize or overcomethe reason in his discussion with a potential futureemployer. The court held that "the interests of thenon-tenured teacher in knowing the basis for hisnon-retention are so substantial and that the in-convenience and disadvantages for a school boardof supplying this information are so slight as torequire a written explanation, in some detail, ofthe reasons for non-retention, together with accessto evaluation reports in the teacher's personnelfile."

However, the court held that a hearing was notrequired. Applying the same balancing process, thecourt concluded that the interests of society inpromoting a better school system and in protectingthe rights of the individual teacher would be servedbest by the detailed statement of reasons for non-renewal of contract without a hearing.

The judgment of the district court was re-versed and the case remanded to that court. If thedistrict court found on remand that the teacherhad not been given reasons for her nonrenewal, thesame should be supplied by the school board.Further, for all teachers notified of nonrenewalsubsequent to this decision, a statement of reasonsmust be provided.

New Jersey

Donaldson v. Board of Education of the Cityof North IVildwood279 A.2 d 112Superior Court of New Jersey, Appellate Division,June 22, 1971.

A nontenure teacher whose contract was notrenewed on recommendation of the superin-tendent, thereby denying her tenure, appealed thelocal board decision to the state commissioner ofeducation. The commissioner dismissed the claim,and the state board of education affirmed the deci-sion. The teacher then sought judicial review.

The question before the court was whether theteacher had a constitutional right to be given astatement of reasons for the nonrenewal and ahearing on those reasons. The court ruled that

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Zimmerman v. I3oard of Education, Newark (183A.2d 25 (1962)), a New Jersey decision holdingthat a probationary te.acher had no legal right tore-employment, was diapositive of the -question.The court concluded by saying that "iu] nless anduntil our Legislature or Supreme Court adopts adifferent public policy, we feel bound byZimmerman . . . and the long standing interpreta-tion of our Education Laws by the State Depart-ment of Education to conclude that nontenureteachers have no legal right to a renewal of a teach-ing contract, or to a statement or explanation of thereasons for nonrenewal, or to a hearing as to thereasonableness of reasons for nonrenewal, absent ashowing of unconstitutional discrimination."

The decision of the state board of educationwas affirmed.

New Mexico

Morgan v. New Mexico State Board of Education488 P.2d 1210Court of Appeals of New Mexico,June 25, 1971;rehearing denied July 21; certiorari deniedSeptember 13, 1971488 P.2d 1209.

A nontenure teacher was discharged by theBloomfield Municipal School District during theterm of his contract. Ile appealed to the stateboard of education which affirmed the decision ofthe local board. An appeal was then taken to thecourt.

The teacher had been discharged for inflictingpunishment on children in a way that was in viola-tion of a school policy of which he was aware. Thestate board found evidence to substantiate thelocal board finding that good cause existed for thedischarge. The court agreed, saying that violationof a known policy to the extent shown by theevidence was good cause for discharging the teach-er for failing to administer corporal punishment ina judicious manner.

That did concern the court, however, was themanner in which the discharge was effectuated.State law authorizes the state board to prescribeprocedures to be used by local boards in super-vising and correcting unsatisfactory work per-formance prior to notice of discharge. Pursuant tothis statute, the state board adopted a procedurerequiring the local board to hold three conferenceswith the employee and to make a written record ofthe conferences, specifying the areas of unsatis-factory performance, action taken to improve suchperformance, and improvements made. This pro-

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cedure was not followed in this case. The issue wasthe applicability of this regulation to the facts ofthis case.

The school board asserted that the teacher wasdismissed for breach of contract, hence unsatis-factory work performance was not involved, andthe requirement for conferences was not ap-plicable. It was asserted that the punishment of thepupils could not be an aspect of work performancebecause the local board had not determined thatwork performance was involved. The court dis-agreed that the label attached by the local boardwas determinative of the issue. Looking at the factsof the case and a statute requiring teachers to ex-ercise supervision over students, the court con-cluded that since the punishment was imposedwhile the teacher exercised supervision over thestudents, the punishment came within the term"unsatisfactory work performance."

It was then contended that the requirementsfor conferences should not be applicable here be-cause the purpose of such conferences would be toestablish a procedure for correcting teacher perfor-mance where it was correctable. The court foundnothing to show that the teacher's action in im-posing punishment on students in violation ofknown school policy was not correctable. No find-ing had been made by the state board on thispoint. One conference was held at which the teach-er denied the charges of impermissible punishment.The teacher was then given the option of resigningor having charges brought, and the teacher refusedto resign.

The court agreed that the nature of the punish-ment inflicted showed a serious situation. But inabsence of any finding that the situation was notcorrectable and no evidence that any effort wasmade at any conference to correct the unsatis-factory work performance, the court held that theappropriate procedure should have been followed.Contrary to the view of the state board of educa-tion, the court found that there was a substantialdeparture from the required procedures which wasprejudicial to the teacher. Therefore, the case wasremanded to the state board with instructions toreverse the local-board decision.

New York

Canty v. Board of Education of the Cityof New York332 F. Stipp. 1009United States District Court, S.D. New York,January 21, 1971. Judgment vacated, UnitedStates Supreme Court, June 29, 1971(41 U.S. Law Week 3004).

(See Teacher's Day in Court: Review of 1970,p. 42.)

The federal court had previously denied themotion of a substitute teacher for a preliminaryinjunction to bar his discharge. At the hearing onthe merits the teacher charged that his discharge,the unsatisfactory rating and the hearing at whichthis rating was upheld were'arbitrary and capri-cious." The teacher also made some claims of pro-cedural invalidity in his civil rights complaint.

The court said that this was not a civil rightscase and merely labeling it as such did not make itone. The teacher's remedy, the court held, was tobring a suit in state court or to appeal to the statecommissioner of education. The fact that theteacher did not avail himself of these stateremedies and that these remedies could not now bebrought because the time had expired, the courtheld, "does not give him a right to proceed in thefederal courts. Any claim of violation of federalconstitutional rights with respect to the hearingmay be, or could have been, asserted in any stateproceeding challenging the validity of his rating."Therefore, the motion of the school board to dis-miss the action was granted.

NOTE: The Supreme Court of the United Statesgranted a petition of certiorari for a review of thisdecision, vacated the judgment, and remanded thecase to the U.S. Circuit Court of Appeals for theSecond Circuit for further reconsideration in thelight of the Supreme Court's decisions in Roth v.Board of Regents and Perry v. Sindermann (seep. 80 of this report) as well as its 1972 decisionin Lynch v. Household Finance Corporation.

Community School Board 3 of the City of NewYork v. Board of Education of the City ofNew York326 N.Y.S.2d 130Supreme Court of New York, Special Term, NewYork County, Part I, November 17, 1971.

(See page 123.)

Hauppauge Classroom Teachers Associationv. Willman317 N.Y.S.2d 461Supreme Court of New York, Appellate Division,Second Department, November 30, 1970.

The teachers association brought an actionagainst school officials to compel the appointmentof a music teacher to a tenure position. The trialcourt denied relief and the association appealed.

The appellate court held that the acceptanceby the school district of the resignation of theteacher in question barred this proceeding.Further, the failure of the school officials to ob-serve and evaluate the probationary teacher inaccordance with the terms of the contract betweenthe school district and the association did not con-fer any tenure rights on the teacher. The decisionof the trial court was affirmed.

Lehman v. Dobbs Ferry Board of EducationUnion Free School District No. 3,Town of Greenburgh323 N.Y.S.2d 283Supreme Court of New York, Westehestef County,June 7, 1971.

(See page 107.)

Tischler v. Board of Education of MonroeWoodbury Central School District No. 1323 N.Y.S.2d 508Supreme Court of New York, Appellate Division,Second Department, July 23, 1971.

A teacher brought suit against the board, seek-ing an order to compel it to grant her tenure. Thetrial court dismissed the complaint for failure tostate a cause of action, and the teacher appealed.

In January 1967, the teacher was appointedfor a three-year period. Shortly before the periodexpired, she was called to a meeting with her prin-cipal and other school officials who told her that itwas not probable that she would be granted tenureat the next meeting of the board when the matterwould be decided. The superintendent was unableto clarify the reasons behind this. At the nextmeeting of the board various school officials en-dorsed the recommendation of the superintendentthat the teacher be granted tenure. The schoolboard voted to deny tenure.

In her suit, she alleged that the board's actionwas a retaliatory measure designed to punish herbecause of the exercise of her constitutional rightto engage in activities as a member of the localteachers union, that the decision of the board wasarbitrary and capricious in that it was made not onthe basis of any reasonable standard, and was madedespite her professional competency as acknow-ledged by her superiors at the board meeting. Theboard contended that it had the absolute right todeny tenure to a probationary teacher for any rea-son or no reason.

The court noted that where the dismissal of ordenial of tenure to a teacher constitutes inter-

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fcrcncc with First Amendment rights, it cannotstand absent an overriding interest of the educa-tional system. Here, it is the public policy of thestate that teachers be allowed to form and joinunions and that a school board may not discrim-inate against them for the exercise of this right.

The facts alleged by the teacher in her com-plaint, if true, would show a violation of theTaylor law. In view of this allegation and theallegation that the teacher was denied tenure solelyin retaliation for the exercise of constitutionalrights, the appellate court held that the complaintof the teacher did state a cause of action andshould not have been dismissed by the trial court.ln so holding, the court said that if the teacherpossesses all the attributes of an excellent teacherbut additionally arouses the displeasure of theschool board merely because she is a union activist,tenure may not be denied her on that ground. Butit does not hold, the court said, that union activityprovides shelter for a teacher whom the boarddecides not to retain for bona fide legitimate rea-sons. The decision was reversed and the matterremanded for a hearing on the merits.

Ohio

Orr v. Trinter444 F.2d 128United States Court of Appeals, Sixth Circuit,June 16, 1971. Writ of certiorari denied, UnitedStates Supreme Court, June 29, 1972(41 U.S. Law Week 3002).

A probationary high-school teacher whose con-tract was not renewed brought suit under thefederal civil rights act against the Columbus, Ohio,school board, seeking a statement of reasons forthe nonrenewal and a hearing on those reasons. Hiscomplaint alleged that his constitutional rightswere violated by failure of the board to renew hiscontract without giving him reasons, hearing, orother due process rights. The trial court grantedthe relief (318 F.Supp. 1041), and the school dis-trict appealed.

The question presented on appeal was whethera nontenure teacher whose employment contract isnot renewed has a constitutional right to be ap-prised of the reasons and to be given a hearing. Theappellate court reviewed cases from other federalcircuit coui ts and noted that they are split on thequestion. Some courts have held that where theteacher has "an expectancy of reemployment," hemust be given notice and a hearing. The appellatecourt said that it was not clear that the teacher in

the instant case had an expectancy of re-employ-ment under the Ohio teacher tenure law. Since theteacher filed this lawsuit, the court assumed he hada personal desire and expectation to continue in hisemployment as a teacher in the school system. lnthis regard, the court said: "Personal desire andexpectation, however, are not the equivalent ofexpectancy of reemployment in contemplation ofthe law. Whatever expectancy of employment [theteacher] may have had during his probationaryperiod and prior to attaining tenure status was notsubject to constitutional protection, but was sub-ject to the discretion of the Board of Educationnot to renew his contract."

The appellate court also stated that while thereis no constitutional right to public employment,termination may not be for constitutionally imper-missible reasons such as race, religion, or freespeech. However; there was no allegation here thatthis was the case.

Summarizing what it considered to be the lawrelating to the issue before it, the court said that tosustain a claim under the civil rights act the teacherwould have to prove that the action taken wasunder color of state law and that the action re-stilted in the deprivation of a constitutional right,Although it was clear that the nonrenewal actionwas under color of state law, the court did notagree that it resulted in the deprivation of a con-stitutional right. First, the teacher did not com-plain that he was dismissed because of his exerciseof a constitutional right of free speech or rightagainst self-incrimination, or because of racial dis-crimination. Secondly, the court said that "in theunique situation of a probationary school teacher,the failure to give reasons for the refusal to rehireis not arbitrary and capriCious action on the part ofthe Board since the very reason for the proba-tionary period is to give the Board a chance toevaluate the teacher without making a commit-ment to rehire him." The court ruled that theinterest of a probationary teacher in knowing thereasons for nonrenewal was not great enough tooutweigh the interest of the board in free andindependent action with respect to probationaryteachers.

The court held that it was neither arbitrary norcapricious to refuse to renew the teacher's contractwithout giving him a reason. Accordingly, thedecision of the trial court was reversed with in-structions to dismiss the complaint.

NOTE: The Supreme Court of the United Statesdenied a writ of certiorari for 'a review of thisdecision.

Pennsylvania

v. School Board of the Trinity AreaSchool District, Washington County281 A.2d 832Supreme Court of Pennsylvania,October 12, 1971.

A nontcnure teacher appealed from the lowercourt denial of a writ of mandamus to compel theschool board to reinstate him. He had been hired in1966 under a two-year temporary professionalemployee contract which was to continue in effect.until the expiration of two years of satisfactoryservice unless terminated by the teacher on 60days' notice or by the school board pursuant tostate law. At the end of his first semester the teach-er was rated satisfactory. However, in May 1967,the teacher was informed that he had been ratedunsatisfactory, and in June was notified that inview of his unsatisfactory rating, his over-all ratingfor the year was unsatisfactory. That same monththe teacher was informed that because of therating, the school board had voted to terminate hiscontract, but that he would be heard if he sorequested. At the teacher's request a hearing washeld, after which the board voted to reaffirm itsdecision.

The teacher then filed his complaint, seekingto compel his reinstatement for the remainder ofthe two-year period and procurement of tenureunless he again received an unsatisfactory rating.He also alleged that he could be discharged onlyaccording to the procedures of section 514 of theschool code. The board argued that mandamus wasnot the proper action to be brought, that section514 applied only to permanent employees, andthat section 1108 applicable to probationaryemployees empowered the board in good faith todischarge a temporary employee after an unsatis-factory rating.

At the trial the teacher presented testimonyconcerning animosity toward him by the principaland vice-principal and attempted to suggest thatdischarge was due to union activities. The trialcourt concluded that no basis existed for a findingof bad faith on the part of the school board andgranted the motion of the board to dismiss theaction.

On appeal the teacher argued that mandamuswas the proper action to be brought to restore himto the position from which he was illegally re-moved. The appellate court disagreed, saying thatmandamus will lie when there is a clear legal rightin the plaintiff and a corresponding duty in thedefendant. Finding neither present in this case, thecourt held that section 110 8 relating to temporary

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employees was the proper section to be applied.The court said that under state law, an unsatis-factory rating was the only prerequisite necessaryfor dismissal of a nontenure employee absent ashowing of bad faith. The trial court specificallyfound that the unsatisfactory rating had been madein good faith. The appellate court held that thisfinding was amply supported by the record, andaccordingly, the teacher's discharge was. proper.The action of mandamus, therefore, was not ap-propriate. The decision of the trial court againstthe teacher was affirmed.

Virginia

tlolliman v. Martin330 F.S upp. 1United States District Court, W.D. Virginia,Roanoke Division, June 21, 1971.

A probationary teacher at Radford Collegebrought suit against the Board of Visitors to com-pel them to reinstate her to her teaching positionand to award her damages for the allegedly illegalnonretention. The teacher had been employed atthe college since the 1965.66 school year and eachspring until February 1969 she received a letteroffering her continued employment and advisingher that she was still operating under the 1940American Association of University Professors'Statement of Principles on Academic Freedom andTenure. In February 1969, she was notified thatshe would not be offered a contract for the1970-7 1 school year. A few days later the teacherresponded to the oral reasons given for the non-renewal of her contract. She appealed to the com-mittee on tenure to reconsider its decision. Onreconsideration, the committee reaffirmed the non-renewal. At no time did the teacher receive writtennotice of the reasons for her nonretention, nor didshe have an opportunity to appear personally andoffer evidenCe in her own behalf.

At the point that suit was brought, the teacherhad exhausted all possible remedies within theacademic community. In her suit the teacher con-tended that she was the victim of "arbitrary,malicious, and unfounded employment practiceswhich violate her rights and privileges guaranteedby the Constitution of the United States." Shefurther alleged that the actions of the board weredesigned to intimidate her and others in the ex-ercise of their constitutional rights. The teacheralso claimed that she had a right to a full evidentiary adversary hearing concerning the reasons forher nonretention in accordance with the principlesof due process. The school officials claimed thattheir actions were in complete conformity with the

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teacher's contract and the law, and that since shewas a probationary teacher, she had no right tocontinued employment and could be dismissed atthe end of the contract period without reasons or ahearing.

The question before the court was what wasrequired by due process in the case of a proba-tionary college teacher. While the court found itundisputed that a college could not refuse to rehirethe teacher for constitutionally impermissible rea-sons such as race, religion, or political affiliation,whether the decision could be made for arbitraryreasons or for no reasons was less clear. In review-ing decisions of the Court of Appeals for theFourth Circuit, the district court said that it ap-peared that the higher court clearly recognized that"even in. the situation of a teacher hired from yearto year at the discretion of the hiring body, dueprocess guarantees that one must not be arbitrarilydeprived of his constitutional rights. The exerciseor discretion concerning a teacher's nonretentionmust be based on the exercise of judgment, notbias or capriciousness, and his termination cer-tainly must not be in retaliation for the exercise ofany constitutionally protected rights by the teach-er. Such a judgment must be based on fact andsupported by reasoned analysis."

The court then attempted to balance the rela-tive rights of the parties in order to ascertain therequirements or due process. The court said thatthe teacher had a private right to pursue her profes-sion and that dismissal by the college would createserious difficulties in the teacher's reputation andfuture academic career. However, the college hadan interest in bringing together a faculty of thehighest possible competency and in not retainingprobationary employees who do not meet this levelof competency.

Having decided that under the due processclause, a college could not base its decision not toretain a teacher, even a probationary teacher, ongrounds wholly 'unsupported in fact or totallywithout reason, the court said that for probation-ary teachers it would accept a standard consider-ably less severe than the standard of "cause" ap-plicable to dismissal of tenure teachers. Collegeswould still have discretion in hiring, retaining, orsevering connections with probationary teachers,but what was required, the court said, was that thisdiscretion be exercised based on facts and reasonedanalysis. While the court felt that it might havebeen preferable for the college to furnish writtenreasons to the teacher for nonretention, and toallow the teacher to appear before the appropriatebody to clear tip any factual disputes, the courtconcluded that the teacher had no absolute right to

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such procedures. Differing from the conclusionreached in Roth v. Board of State Colleges (310F.Supp. 972), the court followed the decision inHodgen v. Noland (435 F.2d 859, 4th Cir. (1970)),holding that a public employee was not tsntitled toa formal notice or charges and a formal hearingbefore dismissal. Accordingly, the court held that anontenured teacher "only has a right to a state-ment or reasons for his nonretention in that he hasa right not to be discharged for an improper reasonor for no reason at all." At some point, reasonsmust be furnished, but there is no constitutionalright to receive them during the administrativeprocess. If, when brought into court, the collegestill refused to give any reason for its action, theteacher would be ordered reinstated.

In this instance the oral reasons given for thenonretention were that the teacher's teaching wasadequate but only adequate, that she was notsufficiently involved in campus affairs, and that shehad failed to exhibit signs or professional growthby either pursuing a doctoral degree or by publish-ing. The court felt that if these reasons were sub-stantiated, it would perhaps justify the nonreten-tion or the teacher. There was a real dispute of thefacts concerning the first two reasons but noneregarding the third. Notwithstanding this thirdreason, the court said that an otherwise justifiableground could not be used as a defense if it was amere pretext and not the moving ground for thenonretention. Accordingly, the court held that theteacher had the right to present to a jury her allega-tion that the firing was actually occasioned by theexercise of some constitutionally protected right orto cover some other improper reason.

On the issue or damages, the court found noevidence that the college officials had actedmaliciously; therefore, the teacher was denieddamages.

Johnson v. Fraley327 F.Supp. 471United States District Court, W.D. Virginia,Abingdon Division, May 21, 1971.

A nontenure teacher brought suit under thefederal civil rights act, charging that the failure torenew her contract was arbitrary and evidenced awillful and wanton disregard of her rights. Thischarge was based on the failure of the RussellCounty school board, which had employed herfor many years, to furnish her with a writtenstatement of reasons for nonrcncwal and anopportunity for a hearing on those reasons. Shealleged that a hearing was mandatory under thewritten personnel policies or the school board and

that the failure to renew her contract had damagedher professional reputation and impaired herability to earn a living. The teacher further claimedthat the action deprived her of the right to dueprocess under the Fourteenth Amendment. Shesought reinstatement and damages.

The school board admitted that the teacherwas not furnished written reasons for the action,but alleged that the teacher had never demanded ahearing and denied that the school board operatedunder the personnel policies alleged to have beenbreached. The school board urged that in anyevent, the teacher had not been denied any dueprocess or substantive rights secured by the Con-stitution since she was a nontenure teacher with noinherent right to renewal or her yearly contract,and since dismissal was not alleged to be for anyimpermissible constitutional grounds, such as race,assertion of freedom of speech or other guaranteedrights.

The court was of the opinion that the case wascontrolled by Kirher v. Moore, 436 F.2d 423 (4thCir. 1971), a decision by the appellate court forthe circuit, which held that nontenure employeesof the \Vest Virginia State Road Commission werenot protected by the due process clause, and nofederal constitutional right was violated when theywere summarily fired. Finding the present caseindistinguishable, the court held here that no fed-erally protected right of the teacher had beenviolated. The only federally protected right claimedby the teacher was protection from discharge except for cause and an administrative hearing priorto termination of employment. The court did notagree that this constituted a protected right.Whether the teacher was entitled to a hearingunder the personnel policies of the school board orunder state law was not at issue since this would bea state and not a federal case. Since no federalclaim was stated, the court dismissed the complaintfor want of federal jurisdiction.

Wisconsin

Derby v. University of Wisconsin325 F.Supp. 163United States District Court, E.D. Wisconsin,April 14,1971.

A nontenured instructor at the University ofWisconsin, Parkside campus, sought a preliminaryinjunction against the nonrenewal of his contract.He alleged that in May 1968 he was notified thathis employment would be terminated in June1969. He was permitted to teach on a part-timebasis during the 1969-70 school year, at the end ofwhich his employment was terminated. The in-

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structor alleged that his dismissal was without "anyreason, justification of any sort or basis in fact"and that he had been denied procedural dueprocess by the failure of the university to granthim a hearing. He further alleged that he was de-prived of his "expectancy of continued employ-ment" and sought reinstatement and damages.

To obtain a preliminary injunction, there mustbe a strong showing that the plaintiff would prevailon the merits of the case. The court found thisshowing to be lacking in this instance mainly be-cause the instructor made no claim that he wasdischarged for reasons relating to First Amendmentrights. Despite decisions that have granted non-tenured teachers a hearing on nonrenewal, thecourt here noted that there was an impressive listof decisions to the contrary. Additionally, thecourt noted that the instructor sought monetarydamages which could be granted only against a"person," and since it appeared that the board ofregents acted only in a representative capacity, itwas unlikely that an action for damages could besustained against the members in their individualcapacities. Accordingly, the motion for a pre-liminary injunction was denied.

Henson v. City of St. Francis322 F.Supp. 1034United States District Court, E.D. Wisconsin,November 30,1970.

Three nontenure teachers and the local educa-tioJ association brought a civil rights action againstthe school district, charging that the contracts ofthe teachers were not renewed "without any lawfulreason and without any lawful basis in fact."Before the court was the motion of the schooldistrict to dismiss for lack of personal and subject-matter jurisdiction and because the complaint fail-ed to state a cause of action.

The court dismissed the action as to theschool-board members in their individual capacitiesand also dismissed the teachers' claim for damagesagainst the board and the school district becausethese defendants were not "persons" within themeaning of the federal civil rights statute. How-ever, the claim for equitable relief was heard.

It appeared that the teachers had each beengranted a private hearing before the school boardbut that their requests for written reasons for thenonrenewal of their contracts had been denied.This denial constituted the gist of their complaint.They urged that as a matter of constitutional rightthey were entitled to a statement of reasons fornonretention and a hearing thereon. The courtfound cases, among them Roth and Gouge, from

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another federal district court in Wisconsin, thatsupported the argument of the teachers but alsofound "an impressive line of cases which holds thata school board's authority not to rehire a non-tenured teacher is unrestricted so long as the rea-sons for non-retention are not based on constitu-tionally impermissible grounds." The court, how-ever, deemed it unnecessary to select one line ofauthority to reach a decision in this instance, sincethe court found that the record here disclosed thatample procedural due process was in fact affordedthe teachers. The school board had complied withthe applicable statute and had given the teachers ahearing. Also, while the complaint of the teachersdid not state affirmatively that the reasons for non-retention were given orally, the court said this con-clusion is irresistible from the fact that the issueraised in the complaint was the school board'srefusal to supply written reasons.

It was the opinion of the court that proceduraldue process did not require written notification ofthe reasons for nonretention, and that the teachershad orally received reasons for nonretention. Forthese reasons, the case was dismissed.

Roth v. Board of Regents of State Colleges446 F.2d 806United States Court of Appeals, Seventh Circuit,July 1, 1971. Certiorari granted, 92 S.Ct. 227,October 26, 1971.

(Sec "t'eacher's Day in Court: Review of 1970, p.46.)

The board of regents appealed from a districtcourt order that directed it to either rehire a non-tenured professor or Zo give him a statement ofreasons for his nonretention and a hearing on thosereasons. The district court had ruled that to safe-guard due process rights, "the decision not to re-tain a professor employed by a state universitymay not rest on a basis wholly unsupported in fact,or on a basis wholly without reason." Further, thatthe "standard is intended to be considerably lesssevere than the standard of 'cause' as the latter hasbeen applied to professors with tenure."

On appeal, the board did not question that ateacher could not be terminated for the exercise ofa constitutional right, but said that it was for thisprofessor to prove that he had not been re-employ-ed for this reason, which the board denied.

The question on appeal was whether the stateuniversity must shoulder the burden of exposingthe reasons on which its decision not to retain theprofessor was predicated and to that extentdemonstrate that its reasons were not imper-

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missible, or whether the professor must initiallyattempt to establish in court that the reasons wereimpermissible. The district court had balanced theinterests of the professor in retaining his positionagainst the interests of the university in preservingthe educational system and concluded that thebalance was %vitli the professor.

The appellate court was of the opinion thatthe district court "properly considered the sub-stantial adverse effect non-retention is likely tohave upon the career interest of an individual pro-fessor aid concluded, after balancing it against thegovernmental interest in unembarrassed exercise ofdiscretion in pruning a faculty, that affording theprofessor a glimpse at the reasons and a minimalopportunity to test them is an appropriate protec-tion."

The appellate court also noted that this casearose after serious disturbances on campus andexpressions of opinion by the professor critical ofthe administration. It appeared that these expres-sions were considered by the board of regents"albeit in a context of supposed relevancy to hisperformance of his duties." Although the decisionof the district court would apply in all nonreten-tion decisions, an additional reason for affirming it,in the view of the appellate court, in cases such asthis "with a background of controversy and un-welcome expressions of opinion, is that it serves asa prophylactic against non-retention decisionsimproperly motivated by exercise of protectedrights."

The decision of the district court in favor ofthe professor was affirmed.

NOTE: An appeal from this decision was heard bythe Supreme Court of the United States in January1972. -in June 29, 1972, the Supreme Court de-cided 5 to 3 that a nontenure teacher employedunder a one-year contract has no constitutionalright to a statement of reasons and a hearing on thestate's decision not to rehire him unless he canshow that the nonrenewal deprived him of an in-terest in "liberty" or that he had a "property"interest in continued employment, despite the lackof tenure or a formal contract.

The Supreme Court said that the interests ofliberty would be implicated and the requirementsof due process would apply where the state, indeclining to rehire a teacher, makes any chargesagainst him "that might seriously damage his stand-ing and associations in the community" or imposeson him "a stigma or other disability that forecloseshis freedom to take advantage of other employ-ment opportunities." Further, procedural dueprocess safeguards would be applicable where the

teacher's property interest in employment supportsa legitimate claim for entitlement to re-employ-ment. The Supreme Court concluded that since theteacher in this case had not shown that he wasdeprived of liberty or property protected by theFourteenth Amendment, summary judgment in his

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favor on the issue of procedural due process shouldnot have been granted.

Accordingly, the decision of the U.S. SeventhCircuit Court of Appeals was reversed and the caseremanded for further proceedings consistent withthis opinion. (40 U.S. Law Week 5079)

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SCHOOL DESEGREGATION

THE CASE DIGESTS reported here under this heading are limited to caseswhere the teachers themselves are litigants. In addition, there are a numberof other 1971 court cases initiated by public-school students for schooldesegregation which contain issues relative to assignment, demotion, reten-tion, and reduction of teaching staff in the process of converting a dualschool system into a unitary school system. These school desegregation casesare not part of this publication.

Alabama

Horton v. Lawrence County Board of Education320 F.Supp. 790United States District Court, N.D. Alabama,Northeastern Division, December 30, 1970.

As part of a school desegregation case the dis-trict court considered the hiring and promotionpractices of the school board. The black pupilswho had first brought suit charged that the schoolboard used a quota system to block employmentof new black teachers and that it had refused torehire a black teacher because of racial prejudice.

The court found that the school board wasusing a quota system in hiring new teachers be-cause of the wording of the previous court orderdirecting that the percentage of black teachers ineach school mirror that of the percentage of blackpupils in each school. Accordingly, the court modi-fied the order to provide that the ratio of blackteachers and stall to white teachers and staff ineach school be the same as each such ratio is toteachers and stall in the entire system.

The court found to be without substance' the.,specific charge that one teacher was not rehiredbecause of race, for in fact she resigned to takematernity leave and was not ((Allred because of anegative recommendation from her principal.

Another complaint by the pupil-plaintiffs wasthat the board had not selected stall members fordemotion on objective, reasonable, and nondis-criminatory standards, citing evidence that a blackcoach had lost his coaching supplement on integra-tion and that former black high-school principalswere demoted and were -ow making less salary.The school board admitted that it had not employ-ed objective and reasonable standards to determine

What kincipals would not be retained as principals,but alleged that since the situation arose because ofcourt-ordered conv.csion to a unitary system, itwas not required to do so. The court held that thisapproach clearly contravened the spirit of thecourt order in this case and of the Singleton re-quirements. What the board should have done wasto consider all high-school principals in the systemfor the remaining high-school principalships. Thosepersons demoted as a result of this evaluation mustbe given preferential rights on future vacancies.

In determining what relief was appropriate, thecourt noted that the former coach had waived anyright or first refusal to regain the coaching supple-ment since he had stated that he did not wish to bea coach. However, if he wished to indicate his in-terest in further coaching assignments, he voulcl beentitled to consideration without regard to race Asto the two principals who were demoted, the courtdirected that they receive for the 1970-71 schoolyear the salary that they would have received ifthey had not been demoted, and that they be givenpreferential rights for the next high-school princi-pal vacancies. One of these principals was then alsoemployed as an instructor at night in the countyvocational school. The court ruled that this princi-pal was not to receive back pay for any periods forwhich he received compensation as an instructor atthe vocationa: school.

Horton v. Lawrence County Boardof Education449 F.2d 793United States Court of Appeals, Filth Circuit,October 19, 1971.

(See case immediately above.)

An appeal was taken by the plaintiffs from thedecision in the case above concerning one blackprincipal who was demoted. The issue was whetheror not in making the back pay award the districtcourt should have deducted the pay received bythe former principal from his position as an in-structor at night in the county vocational school.The plaintiffs asserted that this salary was from asecondary job uitally unrelated to his school dis-trict employment. The appellate court held that ifthis contention was true, the salary received fromthe secondary job should not have been consider-ed. However, the issue of whether the two jobswere related or separate was a question of fact tobe determined by the districr court. Accordingly,the case was remanded to the district court forfindings of fact on this issue.

Lee V. Macon County Board of Education321 F.Supp.United States District Court,

Alabama, S.D., January 4, 1971.

Pursuant to a school desegregation order, theLimestone County Board of Education was direct-ed to close five schools for the 1970-71 schoolyear. The court order also required the board todevelop and make public "objective and reasonablenondiscriminatory standards" governing the de-

`I motion of persons as a result of the desegregationof the school system. in fact, no standards wereused by the school board and the five principals ofthe closed schools all lost their jobs. Four of theclosed schools were black and one was white. Itwas the contention of the board that it was notrequired to utilize the standards for demotion be-cause no vacancies arose in the school system. Onevacancy did arise by resignation of a white princi-pal and was filled with a new white principal, butthe school board maintained that this position wasfilled prior to receipt of the court order.

The court noted that although the one vacancymay have been filled prior to receipt of the courtorder, at that time (spring 1970) the school boardwas aware that some schools would be closed forthe next school year and should have known thatthere was no need to hire a new principal. Thecourt held that the board should have evaluated allof the 16 principals in the system and chosen the12 to be retained. The four not selected thenwould have "a limited preferential right to promo-tion in the event of subsequent vacancies."

The court directed that the new principal bereassigned within the system without any reduc-tion in salary. The court also directed that one ofthe demoted black principals be appointed to the

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vacant position and that the remaining demotedprincipals who had chosen to stay in the LimestoneCounty system be offered the next three vacanciesin the system. In the meantime, the court orderedthat they all be paid, as a salary supplement, thedifference between the salary they were receivingand the salary they would have received had theyremained as principals until such time as they wereoffered a promotion back to principal.

In addition, the court found that the schoolboard discriminated in hiring new teachers in themistaken belief that the faculty racial ratio must bethe same as the student racial ratio. Accordingly,the board was ordered to cease using any racialquota in the hiring of employees and to furnish toother parties to the litigation semi-annual reportsshowing the vacancies to be filled; the qualifica-tions necessary for the position; and the racial andeducational characteristics and experience of theapplicants, including an indication of who washired.

Mills v. Birmingham Board of Education449 F.2d 902United States Court of Appeals, Fifth Circuit',September 27, 1971; rehearing and rehearingEn Banc denied, November 8, 1971.

A Birmingham, Alabama, school teachersought to have her transfer to another school en-joined. She had been transferred pursuant to acourt-ordered desegregation plan. When she refusedto accept her teaching assignment for the 1 970-71school year, the school board notified her that heremployment was terminated. The teacher thenbrought suit in state court, seeking an injunction tobar her transfer. The injunction was issued.

The school board then removed the case fromstate court to federal district court on the groundthat the purpose and effect of the suit was thenullification and circumvention of the federalcourt desegregation order. The federal districtcourt dismissed the suit and the teacher appealed.

The appellate court ruled that insofar as theteacher sought injunctive relief that would haveprevented the school board's strict compliancewith the faculty desegregation order, the federaldistrict court was correct in dismissing the action.In this regard, the court said the school board hada duty to comply with the constitutional mandateof the Singleton decree that could not be avoidedthrough the use of any local tenure or teacherhiring security statutes.

. .1n her complaint the teacher also charged thather transfer was not necessary for compliance withthe desegregation order but was made for political

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or personal reasons in violation of the state tenurelaw. In addition to the injunction, the teacher alsosought reinstatement and back pay for the 1970-71school year. The appellate court held that if theteacher could show that her transfer was made forpersonal or political reasons in violation of statelaw rather than for the purpose of faculty desegre-gation, she would establish a right to reinstatementand possibly back pay. The case was remanded tothe district court to determine if the teacher wastransferred for the reasons that she alleged.

Arkansas

Moore v. Board of Education of Chidester SchoolDistrict No. 59, Chidester, Arkansas448 F.2d 709United States Court or Appeals, Eighth Circuit,September 13, 1971.

Four black teachers who were not rehired Fol-lowing integration of the schools brought an actionunder the federal civil rights statute against theschool district. The district court dismissed thecomplaint, and the teachers appealed.

The school district had historically operated adual school system until the 1969-70 school year.That year the district consolidated its two schoolswith a resulting reduction in faculty. Five blackteachers, including the four plaintiffs, were not of-fered new contracts. All white teachers were offer-ed new contracts.

The district court had proceeded on the basisthat the teachers had the burden of proving thattheir dismissals were discriminatory. The appellatecourt held that this was incorrect. For whereschool districts have a long history of segregation,they must show by "clear and convincing" proofthat the dismissal of black teachers was not Unlaw-fully discriminatory, The failure of the districtcourt to properly assign the burden of proof wouldbe grounds for remand unless the appellate courtwas satisfied that the school board had met theburden of proof. The court was not satisfied in thiscase, and in addition, there were other sound rea-sons for reversing the trial court. First, the appel-late court found that some teachers had voluntarilydeclined to renew their contracts, and the boarddid not offer any of the. dismissed black teachersthe opportunity to fill any of the vacancies arisingout or these resignations. While this court had notpreviously ruled directly on the obligation of aschool board to do so, other federal appellatecourts have ruled under these circumstances that adismissed teacher be given the first opportunity torill a vacancy for which he is qualified, even if the

dismissal was based on nondiscriminatory stan-dards applied in a nondiscriminatory way. In theview or this court, that rule is a sound one andwould be applied to two of the four teachers. Inthe first case, the teacher was qualified for one orthe vacancies which was filled by a teacher withless experience. In the second instance, the vacancywas outside the teacher's certification area, but itwas common practice within the district for teach-ers to teach outside their areas or state certifica-tion. The appellate court held that these two teach-ers were racially discriminated against when theywere not offered positions with the school district.The court also held that Jr the school district wish-ed to require teachers to be certified in the areathey were to teach, such requirement must applyto all teachers then within the system.

The court also found that the other two teach-ers were discriminated against. The court said thata school board in integrating its schools shouldmake provision for a plaagoverning the assignmentand dismissal of teachers, with standards for andproCedures for evaluating teachers. Because thisschool district is quite small, it could have an infor-mal procedure, but it must have some method orevaluating teachers, using definite nondiscrimina-tory standards before dismissing any or the teach-ers.

The court made it clear that a school board isobligated to use objective nondiscriminatory stan-dards in the employment, assignment, and dismiss-al of teachers and could also use previously an-nounced nondiscriminatory subjective factors, butrace per se, including other euphemistic releiencessuch as environment and speech patterns would bean impermissible criterion. The school board in u:liscase contended that it did have the required stan-dards. However, the court held that they were notapplied in a nondiscriminatory manner to the twoteachers. The board argued that one of the teacherslacked the requisite minimum qualification for ateaching position in the school and that she did nothave a regular state teaching certificate. This wascorrect, but both before and alter integration theboard employed white teachers who did not havestate certification. Thus, it should have given theblack teacher an opportunity to continue teachingin the system until it had adopted a nondiscrimin-atory policy against hiring non certificated teachersor alternatively given such teachers a reasonabletime to obtain the necessary certification.

As to the remaining teacher, the board arguedthat she would not be a proper moral influenceupon the children. The charges against her were herpregnancy and her financial situation. The courtnoted that even if the board's allegations were

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based on fact, its decision to dismiss this teacherwould still discriminate unlawfully. The teacher'spregnancy was well known at the time she taughtat the all-black school, and if complaints againsther were not such as to require action against herat that point, the court said, they could not be avalid basis for refusal of employment at an inte-grated school. Additionally; there was evidencethat other teachers had the same financial prob-lems. The court also found that in dismissing thisteacher the board rested its decision on insufficientevidence and had relied on "gossip" for its infor-mation, rather than conducting an independent in-vestigation and giving the teacher an opportunityto dispute the charges. To protect the rights ofblack teachers during school integration, the courtstated, a board should notify the teachers of anycharges against them and give them an opportunityto meet such chwges.

The appellate court concluded that the boardunlawfully discriminated against all four of theplaintiff-teachers. Accordingly, the case was re-manded to the district court with directions that itorder the board to notify the four teachers or pre-sent and future vacancies within the system and tooffer such positions to them without comparingthem with other applicants. If' the teacher does notaccept the first offered vacancy, he is not to beentitled to preferential consideration for subse-quent vacancies. The board may fluffier requirenoncertificated teachers to obtain a certificatewithin a reasonable time after reinstatement. Thedistrict court was also directed to determine theextent that each of the teachers was damaged andthe amount of such damage.

Florida

Braxton v. Board of Public Instruction ofDuval County, Florida449 F.2d 158United States Court of Appeals, Fifth Circuit,September 23, 1971.

This appeal involved an allegedly discriminatorytransfer of a teacher. The teacher had been trans-ferred along with other teachers as part of a generalreassignment of Faculty members pursuant to acourt desegregation order. At the time this appealwas heard, the teacher had returned to her formerposition although for almost one year she had oc-cupied a position or less responsibility. During thattime she had not suffered any loss of salary, pen-sion rights, or other emoluments.

The appellate court said that, even assumingarguendo that a wrong had occurred, there was no

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basis for concluding that the wrong would be re-peated by the school system which was currentlyoperating under the court desegregation order. Ac-cordingly, the appellate court held that contro-versy no longer existed and remanded the case tothe district court with directions that it be dismiss-ed as moot.

Smith v. Board of Public Instruction ofPinellas County, Florida438 F.2d 1209United States Court of Appeals, Fifth Circuit,March 2, 1971. Certiorari denied, 92S.Ct. 61,October 12, 1971.

(See page 35.)

Georgia

Rauls v. Baker County Georgia Board of Education445 F.2d 825United States Court of Appeals, Fifth Circuit,June 29, 1971.

Two black teachers appealed from the lowercourt refusal to enjoin their discharge. The teacherswere being discharged under the claimed applica-tion of a faculty ratio.

The appellate court reversed the decision ofthe trial court because the requirements of theSingleton decree with regard to faculty desegre-gation were not followed in this attempted dismiss-al. The teachers were ordered reinstated for the1970-71 school year with back pay.

Indiana

Burns v. Board of School Commissioners of theCity of Indianapolis, Indiana437 F.2d 1143United States Court of Appeals, Seventh Circuit,January 22, 1971.

(Sec Teacher's Day in Court: Review of 1969, p.33.)

Indianapolis teachers brought a state court ac-tion seeking to enjoin involuntary transfers ofteaching personnel to achieve racial balance in theschools, and to rescind transfers previously made incompliance with a federal court school desegrega-tion order. The state court' issued the requestedinjunction. Thereafter, the school board had theaction transferred to the federal court, which dis-solved the restraining order of the state court andrefused the request of the teachers to remand the

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case to the state court. The teachers appealed fromthat decision.

The appellate court agreed with the judgmentof the federal district court, and upheld the re-moval of the case from the state court, since theassignments complained of were made pursuant tothe federal court's order. The appellate court alsorejected the argument of the teachers that theywere being involuntarily, reassigned by the districtcourt without any opportunity to defend their in-terests. The appellate court noted that the teachershad first sought to intervene in the federal schooldesegregation suit, and when this intervention wasdenied, they chose not to appeal. Having thus waiv-ed any error by their failure to appeal, the courtsaid they could not now collaterally attack eitherthe denial of their petition to intervene or the finaljudgment in the desegregation case. The decision ofthe federal district court was affirmed.

Louisiana

Smith v. Concordia Parish School Board445 F.2d 285United States Court of Appeals, Fifth Circuit,June 15, 1971.

The school board appealed from a districtcourt decision mandating racial ratios for teachers.That court had found that the board had neitherdeveloped nor used objective criteria in connectionwith a reduction in staff following integration andthat the dismissal of black teachers was raciallydiscriminatory. The appellate court held that nei-ther of these findings was clearly erroneous. Nordid the appellate court find an abuse of discretionin the district court's establishment of racial ratiosthat would govern personnel changes until objec-tive and reasonable nondiscriminatory standardswere formulated. The decision of the district courtwas affirmed and the case remanded with direc-tions that the district court require the schoolboard to file semi-annual reports.

Mississippi

Armstead v. Starkville 1111inicipal SeparateSchool District325 F.Supp. 560United States District Court,N.D. Mississippi, E.D., April 7, 1971.

The National Education Association, the Mis-sissippi Teachers Association, and nine black teach-ers who had been employed by the Starkvilleschool district brought suit alleging that the school

district unlawfully refused to re-employ the teach-ers and refused to hire black applicants for posi-tions. They sought a permanent injunction againstthe district to prevent it from enforcing Policy13-69 requiring inservice teachers and applicants toachieve a certain score on the Graduate RecordExamination (GRE) or a master's degree as a pre-condition to retention or employment in theschool system: By a preliminary injunction, theteachers who had not obtained positions for the1970 -71 school year were ordered reinstated pend-ing a trial on the merits.

During 1969 -70, the student enrollment in theStarkville school system was 53 percent white and47 percent black. Prior to a February 5, 1970,court desegregation order the system was organizedon racial lines. One or two black teachers taught inthe white schools, and 23 white teachers were em-ployed in black schools. The four white schoolswere administered by white prinicpals, and thefour black schools by three black principals and ablack head teacher. The desegregation order man-dated faculty integration according to the provi-sions of the Singleton decree. For the 1970-71school year, 43 faculty positions were eliminated,with the reduction being racially disproportionate.Additionally, 32 new teachers were hired; all werewhite. The number of black administrators de-creased to one. The school board maintained' thatthe racial imbalance of the faculty resulted fromthe implementation of its Policy 13-69.

Prior to the implementation of this policy,new teachers were hired on the basis of the infor-mation on their applications, comments of personsgiven as references, and results of an interview withthe principal, who then recommended the appli-cant to the superintendent who in turn made rec-ommendations to the board which made the finaldecision. Present teachers were retained mainly onthe recommendation of their principal. The newpolicy which the board adopted while under pres-sure to integrate the school system required teach-ers hired prior to April 18, 1968, to obtain a com-bined GRE score of 640 or score in the 50th per-centile or better, or have a master's degree. Forteachers employed after April 18, 1968, the re-quired GRE score was 750, or a 60th percentileranking, or the master's degree, or a score of 500on the commons section of the National TeacherExamination (NTE) and a score of 500 on theteaching field section. By taking the NTE a teacherwould qualify only for provisional status andwould still be required to take the GRE.

When this policy was being adopted, the assis-tant superintendent asked Mississippi State Univer-sity, the only institution in Starkville, about its mini-

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mum GRE scores For entrance into graduate school.The college required a 900 For regular admission anda 700 For provisional admission. The court foundthat its a practical matter the alternate master's de-gree in place of the minimum score was not ameaningful alternative since similar or higher scoreswere required For admission to graduate school.Similarly, the percentiles required were too high toconstitute a meaningful alternative.

There was testimony from the EducationalTesting Services, producers and administra tors ofthe GRE to the effect that the test was designed todevelop information about the academic prepara-tion or students "to assist graduate schools anddepartments in the selection of qualified studentsfor admission to graduate study, primarily for thedoctorate" and was not designed or validated Foruse in the selection of teachers, or for the purposesof measuring a candidate's preparation for teachingor identifying those who are or will be competentteachers. No elementary or secondary school sys-tem other than Starkville has made such use of thetest in hiring or retaining teachers. Moreover, theStarkville school superintendent testified that theGRE "had nothing to do with measuring teachercompetency."

Additionally, there was evidence that the im-plementation of the policy had fallen more heavilyon black teachers than on ,vhite teachers. Thecourt noted that GRE scores of graduates of whiteinstitutions were higher than the scores of gradu-ates of black institutions. The superintendent ofschools had testified that he "expected Negroes toscore more podrly than whites." There was evi-dence that at least 14 of the 25 teachers barred bythe policy from continued employment had beenrecommended by their principals For re-employ-trient. The nine plaintiffs in this suit had from oneto 28 years or teaching experience, and prior to theadoption of the policy the school authorities Foundthem to be satisfactory for re-employment.

In light of all of the facts the court concludedthat the school board, in adopting the policy, knewor should have known that its implementationwould bar more black than white teachers Fromre-employment and initial employment in the dis-trict. While it found it commendable that theschool board sought means to improve the qualityof teachers, the court said the means adopted maynot be discriminatory. The court concluded thatthe school authorities had not shown by clear andconvincing evidence that their failure to rehireblack teachers or to hire black applicants was notracially discriminatory and that the cut-off scoresestablished a racial classification which the schoolauthorities had the burden to and failed to justify.

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Therefore, Policy 13-69 was an unconstitutional ra-cial classification.

Further, the court Found it "both unreason-able and discriminatory to use ostensibly neutralcriteria for employment where those criteria arenot substantially related to the job's requirementsand where the criteria disqualify substantially moreblack applicants than white applicants." Accord-ingly, the court ruled that the use of the GREviolated the Fourteenth Amendment For the reasonthat the examinations are not job-related to theextent that they determine teacher competency,and because, as used, they disqualify a dispropor-tionate number of black teachers and applicants.The court also found that the school board hadviolated the ratio requirements of the Singleton de-cree since vacancies in a system undergoing deseg-regation may not be filled with a person of a racedifferent from that of the displaced person untildisplaced staff members have had an opportunityto fill the vacancy.

The court declared that Policy 13-69 was un-constitutional and enjoined the school officialsfrom utilizing the GRE in the selection of inscrviceteachers for retention and the hiring or new appli-cants. Those plaintiff teachers who were not re-em-ployed as a result of the policy were entitled todamages and re-employment. The school board wasalso directed to notify anyone who had been in-formed of the policy that it was no longer in effectand to enclose a copy of the court order. Anyfuture changes in employment or retention policieswere to be filed with the court 30 days prior toimplementation.

NOTE: This decision was upheld by the U.S. Cir-cuit Court or Appeals for the Fifth Circuit in adecision rendered in June 1972.

Armstead v. Starkville Municipal SeparateSchool District331 F.Supp. 567United States District Court,N.D. Mississippi, E.D., July 27, 1971.

(See case above under this title.)

A principal and three classroom teachers whowere not re-employed by the Starkviii school dis-trict brought a civil rights action against the dis-trict. The principal and one classroom teachercharged that the Failure to re-employ them was be-cause of their race and the exercise of their FirstAmendment rights. The remaining two teacherswho were white charged that the failure to rehirethem was because of the concern they exhibited

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for the black community, in particular the childrenin their classes.

Prior. to integration the principal had headedan all-black school. In 1965, while the schools werestill segregated, a new superintendent had been em-ployed who recommended the termination of theprincipal because lie did not consider him quali-fied. The school board, asserting that it was actingin the interest of racial harmony in the district,continued the principal's employment through the1969-70 school year. After the adoption of Policy13-69 (see case above), the principal voiced disap-proval of the policy and at a meeting with theschool board said that "he would advise them tosay their prayers and sleep with one eye open be- 'cause somebody might burn down their homes."The board did not take this as a threat of the prin-cipal but thought the statement to be inappropri-ate and in bad taste and this was made known tohim. Several other incidents also brought aboutreprimands or the principal by the superintendent.Following one of these conversations between theprincipal and the superintendent, the principal call-ed the superintendent, requesting authority toleave hiS building so that he might look for em-ployment elsewhere because he believed that thedistrict would be better off without him and hiswife. The superintendent told him he should thinkabout what he had said because if he followedthrough with his plan, it would be considered aresignation. The principal left the building as hehad planned. It was announced at the next princi-pals' meeting that he had resigned and the positionwas open. The principal was present at this meetingand made no comment.

On considering the evidence, the court was not 'convinced that the resignation was a result of coer-cion. The court ruled that the principal had notmet the burden of proof placed upon him to showthat his separation was not voluntary.

The wife of the principal who was also in-volved in this suit, had been teaching in the all-black school in which her husband was principal.Prior to this assignment she taught in anotherschool where she was unable to get along wit:t theprincipal. She did not accept the fact that her hus-band resigned and contended that he was fired. Toexpress her disapproval of the board's hiring policyof. black teachers, she sent various documents,among them a picture and poem, to numerous per-sons, including the superintendent. The teacherwas recommended for re-employment for the1970-71 school year by the principal and the newsuperintendent. However, the school board failedto elect her, an action it rarely, if ever took, in theface of such recommendations. The members of

the board testified that they knew her husband wasleaving and that they feared trouble with a newprincipal. The court was of the opinion that theteacher's activities with regard to the documentswas protected activity under the First Amendmentand that she was not given an opportunity by theboard to defend the charge that she was uncooper-ative with her former principal, but that the boardseized upon the incident to deny her re-employ-ment. Further; the teacher's long employment withthe school system created an expectancy of contin-ued re-employment. The rejection of the recom-mendations that she be re-employed, the courtsaid, to some degree constituted retaliation for hercriticism of the board's teacher-hiring policy. Sincethe board had already discharged the teacher ongrounds which violated her constitutionally pro-tected rights, rather than returning the matter tothe board for further proceedings, the court heldthat she was end° :d to judicial relief.

The two other teachers involved in this contro-versy were first-year white teachers who taught inall-black schools. Both were recommended for re-employment by their principals for the 1970.71school year. Both were also active in the schooland in school-related activities in the black commu-nity. Under a court-directed desegregation orderthe school board proposed to close three of thefour black schools in the district, thereby causingovercrowding at the formerly white schools. Oneof these two teachers became quite upset at a fac-ulty meeting when this plan was announced. Underthe plan she and her class were to be transferred toa former white school. The new principal refusedto accept her transfer because of the incident atthe faculty meeting. Consequently the teacher wasnot re-employed.

The other white teacher was not recommendedfor re-employment by the superintendent becauseof the protest over the type and manner of anachievement test being administered to her third-grade class. The superintendent classified her con-duct over the test as unprofessional. He did notafford her a hearing on charges of misconduct butsummarily concluded that she should not be re-employed. Both teachers maintained that the inci-dents used not to re-employ them were shams andthat the real reasons were their associations withand their activities in the black community.

Under Mississippi law the school board has au-thority to employ only those teachers who are rec-ommended by the superintendent. Therefore, nei-ther of these two teachers was ever considered bythe school board. The court held that if in eithercase, "dismissal was occasioned, or even partiallyso, by their activities with the black students and

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the black community, or by the exercise of therights of expression or association, then their dis-missal was unlawful and they are entitled to rein-statement and to recover damages occasionedthereby." The court found that the sole issues con-cerning the rights of the two white teachers grewout of the test incident in one case and the facultymeeting incident in the other case. Since the schoolboard had not had an opportunity to act upon thedismissal of either teacher, it was directed to affordthe teachers a hearing on the charges preferredagainst them by the superintendent and the princi-pal. The court retained jurisdiction of this portionof the complaint until after the school board hear-ing.

Baker v. Columbus Municipal SeparateSchool District329 F.Supp. 706United States District Court,N.D. Mississippi, E.D.June 23, 1971.

The National Education Association, the Mis-sissippi Teachers. Association, and eight blackteachers who were not rehired for the 1970-71school year brought suit against the school districtcharging that the district unlawfully refused to re-hire. the eight teachers and refused to hire blackapplicants for teaching positions. The plaintiffs al-so sought a permanent injunction preventing theschool district from requiring a score of 1000 ormore on the National Teachers Examination (NTE)as a precondition for retention or initial employ-ment, a p olicy adopted on Janu ary 12, 1970.

As of the 1969-70 school year the schoolsystem was 61 percent white and 39 percent black.Until 1970 -71 the system was operated as a dualsystem. During the summer of 1970, the districtwas ordered to operate a unitary system immedia-tely. The school authorities intended to reduce thesize of the faculty by three positions in 1970-71,but prior to school opening there were 36 staffvacancies. Between 1969-70 and 1970.71 the num-ber of black teachers on the faculty declined 22percent while the number of white teachers de-clined 3 percent. All but one of the 44 new teach-ers hired for the 1970 -71 school year were white.

Prior to January 12, 1970, the school districtdid not actively recruit new teachers, and retentionof teachers was generally decided by the teacher'sscore on an evaluation form containing 25 items. A

teacher who received a favorable evaluation fromhis principal was virtually assured of being reap-pointed. In 1966, the school district instituted amerit pay provision known as PEP. By this pro-gram a teacher earned points toward merit pay.

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Points could be earned by meeting minimum scoreson the NTE, by earning credits toward an advanceddegree, or by scoring high on the principal's evalua-tion. While theoretically it was possible to obtainmerit pay without meeting the minimum score onthe NTE, it was more likely that a teacher wouldearn merit pay by meeting the score. In the firstthree years of the PEP program 125 teachers re-ceived merit pay; all but four of these were white.

On January 12, 1970, the policy that was thesubject of this lawsuit was instituted. This policyrequired first-year teachers and all new teachers toachieve a score of 1 000 on the NTE to be eligiblefor retention or initial employment. At the trial,expert witnesses for both sides testified regardingthe NTE. The court found that the examinationwas designed to measure the academic achievementof college seniors completing four years of teachereducation, and that there was no evidence of anycorrelation, positive or negative, between the NTEscore and effective teaching. The school district re-lied exclusively on the NTE as a means of hiringand retention. Care was not taken, the courtfound, to relate the score to the experience andneeds of the school district or to guard against arbi-trary results in using the cut-off score as a means ofselecting teachers for re-employment or employ-ment. The couiValso found that the NTE measuresonly 4 of the 25 criteria formerly used by theschool district in evaluating teachers. Further, thatit was unreasonable for the school district to utilizeonly the NTE as a means of deciding on new teach-ers.

The findings-of the court also showed that theapplication of the 'policy resulted in disproportion-ate numbers of inservice black teachers not beingretained as compared with inservice white teachers.Testimony indicated that black teachers could beexpected to perform less well on the test thanwhite teachers. A study of scores obtained by stu-dents at Mississippi institutions of higher educationshowed that 90 percent of the graduates of pre-dominantly white institutions could be expected toachieve a score of 1 000 on the test as comparedwith only 11 percent of the graduates of predomi-nantly black institutions.

The court also found that the policy had beenapplied in a racially discriminatory manner in thatone first-year white teacher who did not score1 000 was retained and two black teachers whowere in their second year of teaching were not re-newed for failure to meet the cut-off score al-though they should not have been included underthe policy. Also, five black teachers who had ap-plied for employment in the district were not hiredalthough they had achieved a score of 1000. This

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was done despite the fact that 36 vacancies existedin the district.

The court concluded that the school districtknew that the application of the policy would barmore black teachers than white teachers from em-ployment and retention, and in fact the cut -oilscore had this effect.

The second count of the teachers' complaintwas that five of the teachers who were not retainedbecause of the NTE score were also denied summerschool employment in retaliation for bringing thelaw suit. The court found as fact that this allega-tion was true.

Under its conclusions of law, the court heldthat it was unconstitutional to discriminate on thebasis of race in the hiring and retention of teachersin the public schools. In this instance, the schoolsystem had a long hiStory of operation as a dualsystem, and in converting to a unitary system therehad been a disproportionate decrease in the num-ber of black teachers. This gave rise to a ratherstrong inference of racial discrimination. The courtfound the inference that the setting of the cut-offscore was discriminatory was further reinforced byother facts. First, the school district knew fromexperience with the PEP program that more blackteachers than white teachers would fail to achieve ascore of ,1000. Secondly, the requirement was ap-plied in an unequal manner. Lastly, black teacherswho had achieved 1 000 on the test were not hiredeven though vacancies existed in the school system.This inference of racial discrimination could be re-butted by clear and convincing evidence which thecourt held the school district had not presented.

The court concluded that the school district,in formulating and applying the NTE cut-off scorerequirement, purposefully and deliberately discrim-inated against black teachers and black applicantsbecause of their race. Since the school authoritieshad not discharged their "very heavy burden ofjustification" for their policy, the court concludedthat the NTE cut-off score requirement was an un-constitutional racial classification. The court saidfurther that the proof demonstrated that there wasno "manifest relationship" between the test andteaching effectiveness. Moreover, the court con-cluded that apart from its discrimination aspects,the NTE cut-off requirement was an arbitrary andunreasonable qualification for re-employment oremployment as a teacher in the Columbus schoolsystem and, therefore, violated the due processclause of the Fourteenth Amendment.

With regard to the second count of the com-plaint, the court held that the teachers were deniedsummer employment as a penalty for bringing thesuit and consequently were entitled to damages.

An appropriate order was to be entered at a laterdate specifying the relief that would be granted.

United Stales v. Tunica County School District323 F.Supp. 1019United States District Court, N.D. Mississippi,Delta Division, July 16, 1970.

By a supplemental complaint in a school deseg-regation case, the United States sought injunctiverelief against the Tunica County school district, thestate of Mississippi, and the state board of educa:Lion for paying the second semester salaries out ofpublic school funds for 19 white teachers who re-signed rather than accept re-assignment. Consoli-dated for trial was a suit by black parents of theschool district charging the school board with un-lawfully allowing school books and other schoolproperty to be used in a private school by whitestudents who left the public school system at theend of the first semester.

A previous school desegregation order for thecounty directed that not less than one out of everysix classroom teachers in a school be'of a differentrace. Prior to the entry of this order, the schoolboard expected that faculty desegregation wouldbe directed, and attached to each teacher's Con-tract for the next year a provision stating that theteacher might be assigned to a school other thanthat shown on the contract, in which event theteacher had the right to terminate the contract.The school district then had 555 white and 3,155black students. Prior to the opening of school forthe 1969 -70 school year, the district court deseg-regation plan was handed down, and the schoolboard met with the teachers and informed themthat they would be teaching at the school specifiedin their contracts.

The district court desegregation plan was over-turned on appeal. Under a new plan, the schooldistrict was directed to assign faculty for the sec-ond semester so that the ratio of black to whiteteachers in each school was the same as each suchratio is to the teachers in the school system as awhole. Shortly after the reassignments were an-nounced, all 19 white teachers in the system resign-ed. Not all of these teachers had been reassigned,but the school system became all-black followingthe court order, and the teachers refused to teachin an all-black school. At the beginning of the sec-ond semester the board paid to the teachers whohad resigned their contract salaries for the remain-der or the year. The same day the Tunica ChurchSchool opened with an all-white enrollment and anall-white faculty, including 18 of the 19 teacherswho had resigned from the public school system.

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The private school charged no tuition, and theteachers taught without pay. The students used thesame textbooks which they had kept in their pos-session after leaving the public schools.

After the desegregation order but prior to thetime the teachers were paid for the secohd semes-ter, the school board had sought an opinion fromthe state attorney general on the legality of payingthe teachers who refused their reassignments. Theattorney general replied by citing a state law set-ting out the form for teacher's contracts and not-ing that the provision in the Tunica county con-tracts providing for reassignment in the event suchbecame necessary because of the court order "hadnot been prescribed by the State Board of Educa-tion and was, therefore, unauthorized. Therefore,such language may be ignored in the determinationof the right of the teacher." It was the opinion ofthe attorney general that the board had the legalright to pay a teacher who refuses reassignmentduring the middle of a school year but demandssalary for the remainder of the school Year.'

The U.S. Government contended that the pay-ments to the teachers were because theywere Made for the purpose and effect of support-ing a racially segregated private school cont. .try tothe Constitution and in direct interference .ith thecourt's desegregation order. The school board de-nied that it had paid the teachers with this intentbut rather that it. had a legal and moral duty to paythe teachers.

The court noted that although the TunicaChurch School operated for only one semester, it.was an all-white, racially segregated school. Regard'less of what the school board intended, the courtheld "the effect of its voluntary decision to paysalary balances to all teachers refusing reassignmentwas to furnish material aid to continuing segre-gated education in Tunica County by means of aprivate school." While the court had no doubt thatthe white students would have withdrawn even ifthe white teachers had continued to teach in thesystem and also that all or most of the 19 teacherswould have likely resigned even if it meant loss offurther salary, still the teachers could not have do-nated their services to the private schocil if the

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school board had not paid them. Under prior feder-al court decisions, the court said, agents of thestate may not lend aid to support segregated pri-vate schools. The fact that the school board obtain-ed a favorable ruling from the state attorney gener-al could not shield it from the constitutional viola-tion.

Regarding the school-board contention that ithad a moral and legal duty to pay the teachers, thecourt found clear evidence that the board made thepayments voluntarily, without legal demand or fil-ing orsuits by the teachers, despite the fact that.18of the 19 teachers had clauses in their contractsstating that the board reserved the right to transferthem. at a later date if the desegregation order re-quired this, in which case the teachers retained theright to terminate their contracts. The court saidthat under the circumstances, it was unable to ac-

-.cep.t,...as a valid defense the board's sympatheticfeelings for the white teachers who refused to ac-cept reassignments. Actually, the board had the af-firmative duty to terminate salary payments insuch instances, for as is plainly spelled out inSingleton, teachers arc required to accept new assign-ments "as a condition of continued employment."

The court concluded that the action of theboard was an unconstitutional giving of state aid tosupport a segregated private school and that theruling of the attorney general purporting to sane,lion the payments was itself infected with uncon-stitutionality and could not be relied upon by theschool board to justify its unconstitutional action.

On the relief to be granted, the court held thatsince the schoolbooks had already been returned tothe school system, that point was no longer at is-sue. With regard to the unconstitutional payments,the court directed that the defendants be requiredto take all reasonably necessary steps to recoverthe money from the teachers (an aggregate of morethan $51,000) and if this was inadequate, the courtreserved the right to adjudge personal liability forthe money against the members of the schoolboard who voted kir the payments, the countyschool superintendent and those members of thestate hoard of education who had personal know-ledge of how the funds were being used.

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CIVIL RIGHTS

Alabama

Ramsey v. Hopkins320 F.Supp. X177United States District Court, N.D. Alabama;Northeastern Division, December 21, 1970.

A black high-school teacher brought suitagainst Lawrence County school officials, allegingthat his constitutional rights had been violated inconnection with the termination of his ,employ-ment. After teaching at a now closed school fortwo years, the teacher had been interviewed in July1970 for a position in the same school system atthe Lawrence County high school. At that time hewas told by the school's principal that the highschool had a rule against the wearing of mustaches.During the interview, the teacher did not indicatethat his mustache was of great importance to him.In due time the teacher was appointed to the posi-tion for the 19 7 0-71 school year and notified toreport to the preschool teachers' institute. Theteacher at this time was still wearing a mustache,but nothing was said about it. The following day,on reporting to school, the teacher was remindedof the no-mustache rule and asked by the principalto talk to the superintendent. He did so and wasadvised to remove his mustache. The teacher re-sponded that he would consider the matter, andlater telephoned the superintendent asking for aleave of absence to take courses at a college. Thisrequest was denied. The teacher then said he wouldresign. The following week the teacher, who hadput off signing a written resignation, told the su-perintendent that he had changed his mind aboutresigning. He was then informed that the matterwould have to be taken up by the board and thathe had a right to appear and be heard. The teacherattended the meeting and waited for several hourswhile other business was discussed, but left prior tothe time his disc was reached. His employment wasthereupon terminated for resignation, insubordi-nation, and failure to cooperate. The following daythe superintendent attempted to.find the teacher aposition at another school but none was available.The teacher's former position at the high schoolwas filled by a black woman. No action was taken

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against another black teacher at the school whowore a mustache, the explanation being that hiswas less noticeable than plaintiff's.

The court found the teacher's claim of racialdiscrimination unconvincing, since no discrimi-nation was shown in either the establishment orenforcement of the rule. conclusion, the courtsaid, was supported by the fact that the teacherwho replaced the plaintiff and the other teacherwearing a mustache were both blacks. Nor did thecourt believe that the wearing of a mustache hasbeen so appropriated as a cultural symbol by mem-bers of the black race as to make its suppressioneither an automatic badge of racial prejudice, or anecessary abridgement of First Amendment rights.The court was also unwilling to say that the pro-cedure by which the board heard the case was inand of itself a denial of due process and equal pro-tection of the law.

However, in looking into the reasons given fortermination, the court found that the first reasongiven, the resignation of the teacher, was unsup-ported by the facts. The other reasons, insubordi-nation and failure to cooperate, were found by thecourt to be merely labels for the teacher's failureto shave his mustache. In considering the no-mus-tachc rule itself, which prevailed only in one highschool in the system, the court said it was "a grossexample of a rule based upon personal taste of anadministrative official which is not a permissiblebase upon which to build rules for the organizationof a public institution." The court found not theslightest argument or evidence to support the un-written rule against mustaches. There was no indi-cation that mustaches caused or were likely tocause any disruption or disturbance; in fact, theother teacher who wore a mustache had never be.:nasked to remove it. The court held that the rulewas unconstitutional and barred the board and theprincipal from enforcing it against this teacher orany other teacher.

Having ruled that the teacher had been subject-ed to an arbitrary, unreasonable, and capriciousrole which violated his right to due process andequal protection of the law, the court consideredthe relief that should be granted. Since another

teacher had been employed to teach the plaintiff'sclasses for the semester, and the plaintiff was at-tending a special program to further his education,the court was :,of the opinion back pay or othermonetary damages was inappropriate. Instead, thecourt directed that the teacher be offered anotherposition in the school system beginning with thesemester starting January 1971.

Arkansas

Arkansas Education Association v. Board ofEducation of Portland, Arkansas School District446 F.2d 763United States.Court of Appeals, Eighth Circuit,July 26, 1971.

(Sec page 19.)

Cooley v. Board of Education of Forrest CitySchool District, Forrest City, Arkansas327 F.Supp. 452h,United States, District Court, E.D. Arkansas, E.D.,April 27, 1971.

(See page 57.)

itilitche!! v. Alma School District No. 30332 F.Supp. 473

'United States District Court, W.D. Arkansas,Fort Smith Division, October 4, 1971.

(See page 24.)

Colorado

Colorado Civil Rights Commission v. State, SchooDistrict No. 1, Bent County488 F.2d 83Colorado Court or Appeals, Division 1,August 10, 1971.

(Sec page 60.)

Connecticut

Hanover v. Northrup325 F.Supp. 1 7 1United States District Court, D. Connecticut,May 1, 1971.

An elementary-school teacher in Roxbury,Connecticut, sought a preliminary injunction toprevent the superintendent and the board of educa-tion from terminating her contract and to requirethem to reinstate her pending a final determination

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in the case. The teacher had been employed in theschool system since September 1968. In December1969, the board of education, at the instance ofthe new superintendent, directed that the Pledge tothe Flag be part of the morning exercises in theelementary schools. The teacher had previouslyreached the conclusion that the phrase "with liber-ty and justice for all" was an untrue statement ofpresent fact. She notified the principal of her re-fusal to recite or lead the Flag salute and arrangedfor a pupil to lead the class while she remainedseated at her desk with her head bowed.

The superintendent ordered the teacher to leadthe class in the Pledge, and when she refused to doso, she was suspended with pay. The board of edu-cation then held a hearing on the sole ground ofinsubordination because the teacher failed to obeythe superintendent's order and voted to terminateher contract.

The court ruled that the refusal of the teacherto recite or lead the Pledge was a form of expres.sion protected by the First Amendment which maynot be forbidden at the risk of losing her job. Thecourt found it of no consequence that her expres-sion took the form of silence. The burden was onthe school authorities to justify their restriction ofexpression on teachers. The court' found no evi-dence to support the restriction,it being uncontro-verted that the teacher's behavior caused no dis-ruption nor did her behavior interfere with or denythe rights of other teachers or pupils.

The court found that the teacher was engagingin conduct protected by the First Amendment andthat the school board had no justification for itsattempted regulation of that conduct. The courtwas satisfied that the teacher had a strong possibili-ty of ultimate success on the merits of this actionand granted a preliminary injunction. The board ofeducation and the superintendent were enjoinedfrom terminating the teacher's contract during thependency or the action and were directed to rein-state her immediately, pending final disposition ofthe action.

Georgia

Glover v. Daniel318 F.Supp. 107 0United States District Court, N.D. Georgia,Newnan Division, August 7, 1969.

A black principal brought suit against officialsof the Pike County schools, charging that the fail-ure to renew his contract for the 1969-70 schoolyear was for racial reasons in violation of his civilrights. The defendent superintendent testified that

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the principal's contract was not renewed becauseto do so was "not in the best interest of theschool" and "because of his lack of cooperation."

At the time the principal's contract was notrenewed, the school system was in the process ofdesegregating. Prior to desegregation one of theblack principals voluntarily resigned to take anoth-er position. He was replaced by a white principal.The principal in this suit disrupted the meeting atwhich the appointment was announced, and theblack students in his school participated in a boy-cott which ultimately caused the newly appointedwhite principal to resign. One of the superinten-dent's examples of the principal's lack of coopera-tion was that he caused the boycott. From thecircumstances presented, the court found that theprincipal either instigated or encouraged the boy-

...cott.Other examples were that the principal failed

to lock the doors and windows of the school atnight with the result that three burglaries werecommitted, and that he failed to hold fire drills asrequired by state law. In both these instances thecourt found that while the principal was careless,these instances standing alone would not justify hisdischarge.

Additional examples presented by the superin-tendent were that the principal failed to attendmeetings held at the State University in anticipa-tion of desegregation. At one of the meetings anongraded system was discussed whicli would ne-cessitate the children in these grades being testedto determine their present level of achievement.When the time came to administer the tests in theprincipal's school, the students refused to takethem. The principal testified that he was "againstthe testing because he thought that standardizedtests were racially biased. The court found that theprincipal had deliberately absented himself fromthe meetings where the tests werdiscussed, that itwas important that he attend these meetings andthat by deliberate action or non-action he sabo-taged the tests. The court also found that the prin-cipal had disrupted a faculty meeting designed toselect textbooks.

In view of its findings the court concluded thatthe principal had not shown that his discharge wasfor racial reasons. "Unquestionably, the FirstAmendment gives a teacher the right to speak hismind; but it does not give him the right to disrupta school or to choose its principals or to sabotageits programs." The court concluded that it was theactions of the principal in these areas and not racialbias that brought about the termination of his con-tract. Accordingly, the complaint of the principalwas dismissed. However, in the interest of future

school and community harmony, the court direct-ed that his position be filled by a black principal.

Louisiana

Carter v. Morehouse Parish School Board441 F.2d 380United States Court of Appeals, Fifth Circuit,April 6, 197 1 ; rehearing denied April 29, 1971.Certiorari denied, 92 S.Ct. 201, October 19, 1971.

A black elementary-school teacher in an inte-grated school who was dismissed brought suit seek-ing reinstatement. She contended that her dismissalwas racially motivated. The board of education hadfound her incompetent because she scored poorlyon an achievement test intended for sixth-grade pu-pils. At the trial, during the testimony of the teach-er's witnesses to the effect that in taking the testthe teacher "was more or less playing around and itwasn't a teacher's test," the court interrupted tosay that it considered this test an insufficientground for dismissal, but that if there were propergrounds, the board could dismiss her. The attorneyfor the school board specifically asked if the boardcould take future action, and the court said yes.Therefore, none of the school-board witnesses washeard. In the court's final order, however, it wasstated that the teacher's dismissal was racially mo-tivated. The school board then appealed.

The appellate court ruled that the trial courterred in not hearing the evidence of the schoolboard. For had the school board known the realbasis of the court's proposed ruling, it might wellhave chosen to offer evidence in rebuttal The ap-pellate court said that a "ruling based on evidencewhich a party has not been allowed to confront orrebut is one which denies due process." The orderof the district court was vacated and the case re-manded.

The Supreme ..,ourt of the United States de-nied a writ of certiorari for a review of this deci-sion.

Maryland

State v. Lundquist278 A.2(1263Court of Appeals of Maryland, une 14, 1971.

A social science teacher in the Anne ArundelCounty, Maryland, school system and his high-school student son in behalf of themselves and oth-ers similarly situated, challenged the recently en-acted Maryland Flag salute statute. Basing its deci-sion on West Virginia State Board of Education v.Barnette (63 S.Ct. 1178 (1943)), the trial court

held that the law violated the First Amendmentright to free speech. The state appealed.

The law required that all students and teach-ers, except those objecting for religious reasons, tostand, salute the Flag, and recite in unison thePledge of Allegiance. Failure to comply was pun-ishable. The teacher maintained that he would re-fuse to engage in this mandatory Flag salute, notfor religious reasons but because he could not "ingood conscience" force patriot ism upon his classes.He also objected to being forced to salute the Flag.because he believed that this requirement elimi-nated his right to freely express his own loyalty tothe United States. He testified that his son sharedthese views.

In Barnette, the Supreme Court of the UnitedStates held that the state may not require schoolchildren to salute and pledge allegiance to the Flag.However, on appeal the state of Maryland arguedthat this case was decided on religious grounds,and since the Maryland law contained a religiousexemption, its constitutionality was not controlledby Barnette.

In an exhaustive review of Barnette and otherdecisions, the Maryland appellate court concludedthat the result reached by the trial court was cor-rect. It was the opinion of the Maryland appellatecourt that "Barnette was unequivocally decided asa question of free speech tinder the First Amend-ment; it is binding as such on this Court."

Going beyond Barnette and specifically con-sidering Tinker v. Des Moines Independent Com-munity School District (89 S.Ct. 733 (1969)), theMaryland court noted that the latter case had heldsilent protest permissible, absent a specific showingof material and substantial disruption to the workand discipline or the school. The court also observ-ed that recent Flag salute and related cases hadturned on this last distinction and not on the free-dom of religion.

In conclusion, the court said: "Entertaining nodoubt that there is ample authority to punish stu-dents or teachers whc materially disrupt properschool activities, including voluntary patriotic pro-grams, we are far from convinced that the mererefusal to participate in any phase of the Pledge ofAllegiance ritual is punishable. To reach a contraryconclusion would allow the schools to disciplinesuch refusal as 'an act of disrespect,' even thoughthey may not compel this ceremony in the firstplace."

The court held the Maryland Flag salute lawand its punishment provision to be unconstitu-tional and void not only under the dictates ofBarnette and Tinker but also under the First andFourteenth Amendments.

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Mississippi

Rainey v. Jackson State College435 F.2d 1031United States Court of Appeals, Fifth Circuit,December 22,1970.

A college teacher brought a civil rights actionalleging that he was discharged for constitutionallyimpermissible reasons. The district court dismissedthe suit for lack of jurisdiction, and the teacherappealed.

The teacher had been employed by a privatecollege in Mississippi when he testified as an expertwitness for the defense in a case involving criminalobscenity against several persons because of theshowing of a motion picture. The case and theteacher's testimony attracted extensive coverage bythe news media. Consequently the board of trust-ees at the private college refused to grant the teach-er tenure when offering him a contract. for the1970-71 school year. In February 1970, the teach-er was designated a Woodrow Wilson Teaching In-tern for the 1970-71 school year. This designationcarries with it some prestige in the gaining of em-ployment at predominantly black colleges and aswell offering the black colleges some indication ofqualified individuals willing to teach in a minorityinstitution.

Jackson State College, a predominantly blackinstitution, thereafter sent to the teacher a pro-posed contract for the 1970-71 school year as anassistant professor of English. The transmittal let-ter from the president asked the teacher to indicateacceptance by signing and returning the contract.This, the teacher did and shortly afterwards reject-ed the offer of the pri,;ate college for the renewalof his teaching contract for 1970-71. The teacherthen taught two 1970 summer sessions at JacksonState.

During the summer the president submitted tothe board of trustees his recommendations for em-ployment of personnel for the 1970-71 year, in-cluding this teacher. The special education commit-tee of the board of trustees concluded that theemployment of the teacher would not be in thebest interests of Jackson State College, and the en-tire board then passed a resolution eliminating hisposition and three others for the 1970-71 schoolyear, stating as a reason the need to increase thecampus security force. Through his attorney, theteacher requested the board to reverse its actionand also requested a hearing. The board repliedthat it would not discuss the matter with the teach-er. Suit was then brought.

After dismissal of the suit by the district court,the teacher sought a preliminary injunction from

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the appellate court pending appeal. This was grant-ed. The board of trustees failed to reinstate theteacher, insisting that all that was required was thathis salary be paid. A clarification was then issuedby the appellate court directing reinstatement to ateaching position.

The reason given by the district court in dis-missing the action for lack of jurisdiction was thatthe teacher had not asserted a claim to a denial of afederally created right. That court held that therewas no federal right to be employed by JacksonState College. The appellate court held that thisinterpretation misunderstood the nature of rightbeing asserted. The teacher.. did not claim that hehad a vested constitutional right to public employ-ment in Mississippi, but rather that employmentwas being denied to him in retaliation for his asser-tion of his First Amendment right to freedom ofspeech. The appellate court ruled that since thecomplaint alleged that the college officials were de-nying him an opportunity for employment on con-stitutionally impermissible grounds, the teacherstated a cause of action and the district court didhave jurisdiction to hear the case.

The college officials argued that at no time didthe teacher have a valid contract with the collegefor 1970-71 since the president does not have thefinal authority to make employment contracts andthat employment was not denied on unconstitu-tional grounds. The appellate court did not decidewhat relief, if any, the teacher might be entitled to,but did decide that he was entitled to his day incourt. The college officials also argued that theyhad agreed to give the teacher a hearing, but thathe declined to appear because the hearing was notset for an earlier date. The appellate court ruledthat the teacher was not required to exhaust hisadministrative remedies prior to bringing a federalcivil rights action.

The appellate court said this decision did notmean that every teacher employment problem ismaterial for a federal law suit; rather, that underthe facts of this case, the federal court did havejurisdiction and must proceed to hear the matter.The district court decision was reversed, and thecase remanded for further proceedings on the mer-its with the temporary injunction left in force.

New York

Board of Higher Education of the city of NewYork v. State Division of Human Rights321 N.Y.S.2d 229Supreme Court of New York, Appellate Division,First Department, May 20, 1971.

.'

The State Division of Human Rights appealedfrom the trial court order that it lacked jurisdictionto hold a public hearing on alleged discriminationin employment and promotion of faculty membersat Queens College.

In reversing this decision, the appellate courtnoted that it had already been held that the StateDivision of Human Rights has jurisdiction in mat-ters involving alleged discrimination in employ-ment at Queens College. Should. that Division over-step its bounds, exceed its jurisdiction, or makeany illegal rulings, the court continued, the boardof higher education was adequately protected byresort to administrative and judicial review.

Rhode Island

Ricciotti v. Warwick School Committee319 F.Supp. 1006United States District Court, D. Rhode Island,November 6, 1970.

A public-school teacher brought suit under thefederal civil rights act, seeking reinstatement ashead of the science department at Groton School.Before the court was the motion of the schoolcommittee to dismiss the action for lack of sub-ject-matter jurisdiction.

In his complaint the teacher alleged thesefacts: The teacher applied for a vacant position ashead or the science department at Groton juniorhigh school, was interviewed by a committee, andwas officially appointed on June 4, 1969. Heserved in that position for the 1969-70 school yearand was reappointed for the 1970-71 school yearat a higher salary. However, in June 1970, he wasnotified that he would be assigned as a junior high-school science teacher at a lower salary. At thetime the teacher was initially appointed, there weretwo other similar positions vacant at other juniorhigh schools. An unsuccessful applicant for one ofthe three vacancies filed a grievance via the teach-ers union with the school committee. The teacher-plaintiff was ordered to appear before the arbitra-tion panel that heard the grievance. He compliedwith this request. The panel ultimately ruled infavor of the grievant who supplanted the plaintqfas head of the science department at Groton.

Jurisdiction under the federal civil rights actmust be predicated, upon deprivation under colorof state law of a federal constitutional or statutoryright, privilege, or immunity. Here, the teacher al-leged that his Fourteenth Amendment substantiveand procedural rights had been violated by the fail-ure of the arbitration panel to give him an opportu-nity to obtain an attorney to represent him at the

hearing and by the panel's failure to allow him topresent evidence or to Cross-examine witnesses.The teacher also alleged that since the hearing washeld under authority of the Rhode Island SchoolTeachers' Arbitration .Act, the action taken was"under color of state law" within the meaning ofthe federal civil rights act.

The sole argument advanced by the schoolcommittee in support of its motion to dismiss theaction was that the teacher failed to exhaust hisadministrative remedy under state law, namely, thegrievance procedure that had initially deprived himof his position. The teacher admitted that he didnot resort to the procedure because to do so wouldbe a waste of time. His reasons were that in view ofthe fact that the teachers union processed thegrievance filed by the other teacher who was aunion member, it could not be expected to repre-sent him, a non-union member, as vigorously, sincea decision in his favor would displace the unionmember teacher. State law gives the union exclu-sive authority to process these grievances. Theteacher also argued that it was likely that the samethree persons would make up the panel whichwould then have to reverse its recent prior decisionto render a decision favorable to the plaintiff.

The court discussed the necessity of exhaust-ing administrative remedies prior to bringing suitbut did not decide the issue, finding that a decisionwas not critical to a decision on the motion todismiss. The court did find that the teacher hadalleged sufficient facts with sufficient particularityto raise some question concerning the futility and/or inadequacy Of resorting to the arbitration reme-dy provided by state law. The court said that it was"not convinced to a legal certainty that he had anadequate State remedy, and if not, then the law isclear that he did not have to resort to that reme-dy." Accordingly, the motion of the school com-mittee to dismiss the action was denied.

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Texas

Montgomery v. White320 F.Supp. 303United States District Court, E.D. Texas, TylerDivision, October 24, 1969.

A teacher brought an action against the TatumIndependent School District, charging violation ofhis First Amendment rights. Before the court wasthe motion of the teacher for a directed verdict.

The teacher was not offered a contract for the1968-69 school year, at least in part, because of hisviolation of a regulation of the school district thatprohibited all political activity by teachers exceptvoting. This was contrary xio a Texas statute whichprovided that no school district could directly orindirectly coerce any teacher to refrain from par-ticipating in the political affairs of his community,state, or nation. When the school district was madeaware of this statute, it amended its regulation, butat the time the teacher was refused a contract, theregulation was in full force and effect.

The court held as a matter of law that theschool district had unreasonably, arbitrarily, anddiscriminatorily violated the teacher's rights in notfairly considering him for public employment. Thecourt said that "simply because teachers are on thepublic payroll does not make them second-class cit-izens with regard to their constitutional rights."The court found that the complete ban on theright of teachers to express political opinions andengage in political activity is inconsistent with theFirst Amendment guarantee of freedom of speech,press, assembly, and petition. The teacher's motionfor a directed verdict was granted.

NOTE: Although this case was decided in 1969,the published opinion first appeared in 1971.

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TEACHER/SCHOOL BOARD NEGOTIATION

California

Trustees of the California State Colleges v. Local1352, San Francisco State College Federationof Teachers92 Cal.Rptr. 134Court of Appeal of California, First District,Division 4, December 18, 1970.

On January 6, 1969, a strike was commencedby the teachers union against San Francisco StateCollege. Picket lines were set up, and ingress andegress at the campus were physically interferedwith. It was necessary for the police to be called.On January 8, 1969, the trustees of the state col-lege system sought to enjoin the strike and therelated activities. A preliminary injunction wasgranted, and on October 27, 1969, summary judg-ment was granted in favor of the trustees. Theunion then appealed.

The injunction issued under the summary judg-ment banned a strike, picketing in support of astrike, interfering with the work of the college forthe purposes of supporting a strike, and coercing,compelling, inducing, or encouraging any employ-ees of the college to engage in a strike against thecollege.

The principal issue on appeal was the right ofpublic employees to strike. The appellate courtheld that under common law as followed in Cali-fornia, public employees do not have the right tostrike absent a statutory grant; that no such grantexists; that the strike was, therefore, unlawful andthat the judgment of the trial court was valid. Theappellate court disagreed with the argument of theunion that the injunction amounted to involuntaryservitude in that it prohibited a withdrawal of la-bor which cannot be curtailed under the Thir-teenth Amendment. While each employee couldwithdraw his labor by quitting his employment,the court said, this was not tantamount to a rightto strike.

The final argument of the union was that theinjunction was unconstitutionally overbroad be-cause it enjoined all picketing. The court said thatthe picketing here was properly enjoined because itsupported a strike by public employees which is

impermissible and because it resulted in violenceand disruption on the campus. The appellate courtnoted that informational picketing was not enjoin-&I, only picketing in support of the strike. Thejudgment of the trial court was affirmed.

Indiana

Hanover Township Federation of Teachers v.Hanover Community School Corporation318 F.Supp. 757United States District Court, N.D. Indiana,Hammond Division, August 3, 1970; supplementalmemorandum August 14, 1970.

The Hanover school district sent out individualcontracts to teachers for the 1970-71 school yearwith the notation that if they were not returned byJune 1, 1970, the board would deem it a rejectionof further employment rights. Twenty-two teach.ers who did not return their contracts by that datewere notified that they would not be re-employed.

The teachers instituted a civil rights action.They claimed that the sending out of the individualcontracts constituted a failure on the part of theboard to negotiate in good faith with the HanoverTownship Federation of Teachers, their collectivebargaining agent. The court ruled that the teachershad not shown the deprivation of a federal consti-tutional or statutory right. The contentions of theteachers that the school-board action violated statelaw or constituted a breach of duty to bargain ingood faith, the court said, raised issues cognizablein state courts but failed to present any federalquestion. The action was dismissed as to theseteachers.

In a supplemental memorandum the court con-sidered the claims of nine members of the teachersunion whose contracts were not renewed for the1970-71 school year. Eight of the teachers werenontenured, one had tenure. The teachers claimedthat nonrenewal was in deprivation of their associa-tional rights under the Constitution of the UnitedStates. The court found ample evidence to provethis point. All nine were active in the union, andthe five members of the negotiating team wereamong the nine whose contracts were not renewed.

The court was convinced that the reasons given bythe school officials for discharging the teacherswere (`merely illusory and intended to cover up thereal motives for the termination of the teachers."The activities of both the high-school principal andthe superintendent indicated that their intention tohave the union teachers discharged was formed pri-or to the incidents upon which the school boardsupposedly relied in discharging them.

The court concluded that the contracts of thenine teachers were terminated in retribution fortheir union activities and that such termination vio-lated the constitutional guarantee of freedom ofassociation. The school officials were directed tooffer the teachers contracts for the next schoolyear at terms no less favorable than in their1969-70 contracts, including responsibilities for ex-tracurricular activities. The school officials wereenjoined from discriminating in any way againstmembers of the union for exercising their FirstAmendment right of association.

Kentucky

Jefferson County Teachers Association v. Boardof Education of Jefferson County463 S.W.2d 627Court of Appeals of Kentucky, October 30, 1970;rehearing denied, March 19, 1971. Certioraridenied, 92 S.Ct. 75, October 12, 1971.

The teachers association and individual teach-ers appealed from the trial court issuance of a pre-liminary injunction against a strike which had beenin progress for four days. The teachers returned towork following the injunction.

On appeal the teachers contended that theyhad the right to strike under state law. This conten-tion was based on a provision of the state lawwhich granted the *right to strike to "employees"without making a differentiation between publicand private employees. The court noted at the out-set that under common law and the statutes ofmany states, public employees arc forbidden to en-gage in a strike. Prior to the revision of the Ken-tucky statutes, Kentucky public employees wereexpressly exempted from the law relating to em-ployer-employee relations and recognizing the rightto strike. It was the opinion of the appellate courtthat the "apparently inadvertent omission of thisexclusion in (the employer-employee relations law]when the statutes were revised cannot be held tohave changed the legislative policy and the law."Therefore, the court ruled that the association andthe teachers could not claim that the legislaturehad granted them the right to strike.

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The next contention of the association and theteachers was that the denial of the right to strikeconstituted a denial of due process in violation ofthe state and federal constitutions. The court saidthat this argument was based on the unfoundedassumption that public employees had a constitu-tional right to strike. Reviewing decisions of otherstates relating to the right to strike, the court not-ed that it had been held that the denial to publicemployees of the right to strike does not violateeither due process or equal protection of the laws.The association and the teachers further contendedthat the denial of their right to strike imposed in-voluntary servitude in violation of the Constitu-tion. The appellate court also disagreed with thisargument, saying that the teachers were not com-pelled to perform personal service since they couldalways terminate their contracts if they wished.

Nor would the court accept the arguments thatthe injunction violated constitutional rights to freespeech and public assembly or that since two ofthe organizations included in this appeal were oper-ating under negotiated agreement with the schoolboard, they also had the same bargaining rights asunions in private industry, including right to strike.Finally the court rejected the argument that theschool district failed to show irreparable injury pri-or to the issuance of the injunction. Accordingly,the decision of the lower court in favor of theschool district was affirmed.

NOTE: The Supreme Court of the United Statesdeclined to hear an appeal from this decision.

Massachusetts

School Committee of New Bedford v. Dlouhy271 N.E.2d 655Supreme Judicial Court of Massachusetts,Bristol, June 30, 1971.

The school committee and the city of NewBedford brought suit in 1968 and 1969 against cer-tain named teacher-members of the local teachersassociation and against the director of field servicesfor the Massachusetts Teachers Association seekingto enjoin a strike and to enjoin the director fromencouraging or inducing a strike. Relief was grant-ed by a restraining order followed by a preliminaryinjunction, a final decree, and judgments of civilcontempt against all of the defendants and a judg-ment of criminal contempt against the director.This proceeding involved appeals from all actions.

The appellate court found that both the finaldecree in 1968 and the one in 1969 enjoining thestrike were entered by the court with the consent

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of the defendants. In view of this, an appeal onthese decrees could not be sustained.

The next appeal was from the adjudication ofcivil contempt. The appellate court found thateach of the defendants was asked in open court ifhe admitted or denied his guilt. All having admit-ted guilt, the appellate court held that they waivedtheir rights to later raise legal and constitutionalquestions presented to the trial court prior to anadmission of guilt.

The defendants also appealed the amount ofthe fine levied against them. Damages caused to thecity by the strike was assessed at $100,000 and thetrial court decided that this loss could be shared byboth sides and fined the defendants a total of$50,000. Defendants questioned the fine on thebasis of a letter written to the teachers by the su-perintendent almost a year after the fine was im-posed. The appellate court said that it was pre-cluded from considering matters which did not ap-pear before the trial court and found no error inthe amount of the fine imposed by that court.

The final appeal was that of the director offield services, from the finding that he was guiltyof criminal contempt and the imposition of a$5,000 fine against him. The appellate court foundthat the director had admitted guilt to the chargeof civil contempt but had never been asked if hewas guilty nor admitted guilt to the charge of crim-inal contempt. He was not tried on that charge, norwas evidence presented against him on the charge.The punishment for criminal contempt, the courtsaid, is solely for the vindication of public author-ity and in general the proceedings leading up topunishment should be in accordance with princi-ples which govern the practice in criminal cases.Since this was not the case here, the judgment ofcriminal contempt and the $5,000 were reversed.The remainder of the judgment against the teachersand the director was affirmed.

Minnesota

Head v. Special School District No. 1182 N.W.2d 887Supreme Court of Minnesota, December 9, 1970;rehearing denied February 9, 1971. Certioraridenied, 92 S.Ct. 196, October 19, 1971.

The Attorney General of Minnesota broughtsuit against the school district, seeking to enjoin itfrom making payment to striking Minneapolisschool teachers pursuant to an agreement betweenthe school district and the Minneapolis Federationof Teachers (MFT) and the City of MinneapolisEducation Association (CMEA). The trial court

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granted the injunction, and the school district andtwo organizations appealed.

In February 1970, the school board was en-gaged in negotiations with the teachers' councilmade up of three representatives of MFT and tworepresentatives of CMEA. When the parties wereunable to reach agreement on a salary schedule forthe 1970-71 school year, the board, in accordancewith state law, requested the establishment of anadjustment panel and named its representatives tothe panel. The council chose not to name its repre-sentatives and subsequently two panel memberswere named by the court. Following the report andrecommendations of the panel, which the boardaccepted, MFT voted to strike on April 9, 1970.CMEA sought personal leave for its members fortwo days, and when this was denied, voted not tojoin in the strike. However, some CMEA membersdid strike. The strike took place, and picketingcontinued even after an injunction was obtained bythe board. Subsequently the board closed theschools.

Negotiations continued, and in order to get thetwo teacher organizations to recommend to theirmembers to return to the schools the board agreedto three resolutions. The first two of these werethe basis of this action. Resolution A rehired thestriking teachers and proposed to pay to each aspart of his or her last paycheck for the 1970-71school year an amount equivalent to the differencein pay between what was received for the 1970-71school year and what the teacher would have beenpaid during that year if the teacher had been onthe appropriate step of the salary schedule. Resolu-tion B proposed to pay each of the teachers forseven days during the strike period an amountequal to their regular salary.

The, ,!itate attorney general alleged that theagreement and Resolutions A and B violated thestate no-strike law that provides that public em-ployees who do strike automatically abandon andterminate their employment. Such employees cansubsequently be reappointed only on certain con-ditions, including that their pay cannot exceed thatwhich they received prior to the strike, that theircompensation cannot be increased within one yearof the reappointment, and that they shall be onprobation for a period of two years following thereappointment. The trial court had determinedthat the resolutions of the board violated the no-strike statute and that the statute was constitu-tional.

The state supreme court reviewed cases in oth-er jurisdictions that upheld similar legislation barr-ing strikes by public employees and concluded thatthe Minnesota legislation was constitutional. The

statute, the court stated, neither violated the FirstAmendment nor denied the teachers due process orequal protection under the Fourteenth Amend-ment. The court said that since striking employeesare terminated as soon as a violation of the statutetakes place, no compensation can be paid to themduring the period of nonemployment. Thus, Reso-lution B, which purported to pay teachers whilethey were on strike when in effect they were nolonger employees of the school district, was nulland void. Additionally, the resolution was unten-able because it provided pay for work not perform-ed. Further, the court pointed out that the statuteprovided that increased compensation cannot bepaid within one year of the reappointment of strik-ing teachers. Consequently, Resolution A, whichsought to make a lump-sum payment at the end ofthe 1970-71 school year, was in effect paying com-pensation for work performed during the 1970-71school year, within one year of the reappointmentof the teachers, which was contrary to the statute.The order of the lower court against the schooldistrict and the two teachers organizations wastherefore affirmed.

The Supreme Court of the United States de-nied a writ of certiorari for a review of this deci-sion.

Missouri

St. Louis Teachers Association v. Board'ofEducation of the City of St. Louis467 S.W.2d 283St. Louis Court of Appeals, Missouri,April 27, 1971.

(See Teacher's Day in Court: Review of 1970, p.57.)

The teacher association and several teacherssought a declaratory judgment against the board ofeducation of St. Louis, alleging that the board hadrefused to recognize the association and requestingthat the court rule that the board could enter intonegotiations with the association. The trial courtdismissed the petition, and the teachers appealed.The state supreme court ruled that it did not havejurisdiction of the controversy and transferred thecase to a lower appellate court.

On this appeal the teachers first alleged thatthe trial court erred in dismissing the petition be-cause it did present a justiciable controversy. Theboard argued that it did not. In agreeing with theboard, the court noted that nowhere was it allegedthat teachers who were members of the associationappointed the asso elation as their bargaining repre-

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sentative. It also was not alleged that the associa-tion presented or attempted to present a specific ordefinite problem, grievance, or request to theboard and was not heard, nor was there any allega-tion as to the nature of the problems that theyattempted to negotiate. The court said that a defi-nite statement of facts describing a controversyripe for determination was lacking; the petitionmerely alleged some difference of opinion as tosome general matter and asked the court for anadvisory opinion on related legal problems whichmight or might not come to pass.

Ruling that there was no justiciable contro-versy, the appellate court affirmed the trial court'sdismissal of the association petition.

New Jersey

The Board of Education of Newark v. NewarkTeachers Union, Local No. 481276 A.2d 175Superior Court of New Jersey, Appellate Division,April 5, 1971. Certiorari denied, 92 S.Ct. 275,November 9, 1971.

The teachers union and 185 individual teachersappealed from summary judgments of contempt ofcourt and the sentences and fines imposed pursu-ant to these judgments. All of the defendants hadbeen found guilty of violating a restraining orderprohibiting the union and the teachers from en-gaging in a strike against the Newark board of edu-cation or from doing anything in furtherance ofthe strike. Despite the restraining order the strikecontinued for most of the month of February1971. Most of the individual defendants were ar-rested when found picketing or congregating out-side schools on what would have been a normalschool day. Six union officials were arrested pursu-ant to warrains specifically naming them, and mostall of the others were arrested pursuant to a generalorder directing the sheriff to arrest "any individualwho in his presence or that of any member of hisstaff is observed to continue to violate this court'sorder of January 31, 1971."

The first contention on appeal was that the.general order of arrest was illegal and that the statecould not rely upon this illegal order to arrest theunnamed pickets. The court held that even if thegeneral order was invalid for failing to identify thepersons to be arrested, it did not follow that thearrests were also invalid. The offense was a misde-meanor for which arrests can be made if the of-fense was committed in the presence of the arrest-ing officer. The court concluded that they were socommitted, and were valid arrests. The restraining

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order, the court said, contained broad enough lan-guage to warrant the arrest of individuals aidingand abetting. The individuals assembling or millingabout outside the schools, inferably to deter teach-ers and other school personnel from attending totheir duties or to encourage others to participate inthe strike were aiding and abetting others to violatethe restraining order as well as doing so themselves.

The second contention was that the teacherswere all convicted for contempt of court for ab-sence from the classroom although they were notcharged with that act. The court found from thetotality of the evidence that the teachers' absencefrom the classroom was in furtherance of the illegalstrike and that the vast majority of the individualteachers were proven to have been picketing in vio-lation of the restraining order. It was also assertedthat eight of the teachers were not proven to havebeen picketing and were convicted solely on theirabsence from class. In reviewing the cases of theseeight teachers, the court found that they were alsofound properly guilty of contempt "in that theproofs justified beyond a reasonable doubt findingsthat they violated the restraining order by willfullyparticipating in or aiding and abetting the strike inone or more of the ways prohibited by the restrain-ing order."

The court also did not agree with the assertionthat the teachers were afforded no notice or inade-quate notice of the offenses with which they werecharged. The court found that state rules governingsummary contempt proceedings were compliedwith in that each teacher arrested was properly no-tified of the charges.

The final contention of the defendants wasthat the sentences imposed were "arbitrary and ex-.cessive." For the most part the teachers received10 days in jail and a $200 fine. Union leaders re-ceived up to three months in jail and a $500 fine.The union itself was fined $40,000. The defen-dants asserted that they were being punished essen-tially for striking and not for violating the restrain-ing order. Based on the whole record, the appellatecourt concurred in the sentences imposed. The ap-peals of the teachers and the union were dismissed.

The Supreme Court of the United States de-nied a writ of certiorari for a review of this case.

In re Jersey City Education Association278 A.2d 206Superior Court of New Jersey, Appellate Division,May 21, 1971. Certiorari denied, 92 S.Ct. 268,November 9, 1971.

The Jersey City Education Association (Associ-ation) and 20 individual teachers appealed from

their convictions of contempt of court for viola-tion of an anti-strike injunction on the ground thatthe injunctive order was unconstitutionally issued.

The background of events showed that follow-ing an impasse in negotiations, largely attributableto the board's statement that a $100 increase perteacher was its final offer, and also because of fail-ure to agree on issues concerning class size, a fact-finding group was appointed. After various meet-ings of the parties in which the Association unsuc-cessfully sought to have the board of school esti-mate defer adoption of the proposed budget untilthe disputed issues were resolved, and while thefact-finding group was still meeting, the teachersvoted on February 8, 1971, to strike. The follow-ing day the board sought and was granted a tempo-rary restraining order against the Association onthe basis of the Association's concession that as ofthat day a strike existed. On February 10, each ofthe officers of the Association and the members ofthe executive board were served with a copy of theorder. When the strike continued, an order was is-sued for their arrest. On February 19, ten moreteachers were ordered arrested for violation of thecourt order.

With the exception of one teacher, one Associ-ation officer, and the New Jersey Education Asso-ciation, all of the defendants were found guilty ofcontempt of court. Fines and jails sentences wereassessed against the individuals, and the Associa-tion was fined $10,000.

The first issue on appeal was the validity of therestraining order. The defendants argued that itwas issued contrary to the state constitution. Onthis point, the court ruled that the state of the lawwas contrary to this assertion.

The next argument was that there was notproof beyond a reasonable doubt that there wereknowing violations of the order. The officers andmembers of the executive board of the Associationcontended that there was no proof that they wereabsent from school pursuant to a strike plan. Theyalso argued that their attendance records were im-properly admitted. The court was satisfied that therecords were properly admitted into evidence andthat they warranted the inference that the indivi-dual teacher-defendants were absent from schoolpursuant to strike activity. The court said: "Suchevidence of absence from school without excuse orexplanation in violation of school regulation, cou-pled with all the other evidence, including the factthat a union strike was in progress and that thesedefendants occupied executive pOsitions in the As-sociation whose members voted the strike, estab-lished beyond question that all of these individualdefendants, as well as the Association of which

they were officers, were participating directly orindirectly in the strike, and aiding and abetting itin violation of the restraining order."

As to the second group of teachers, those ar-rested on February 19, the primary issue was theadequacy of the notice. In view of the fact that thestrike was well publicized and that the restrainingorder was published in its entirety in full-page dis-plays in both local daily papers, in the opinion ofthe court the inescapable inference from all thecircumstances was that the teachers were not onlyaware of the strike but that they were also awareof the contents of the order, whose proscriptiveterms extended to all members of the Association.According to the court, the record was sufficientto justify the conclusion that these teachers actedwith knowledge of the restraining order.

Finally, the Association argued that the$10,000 fine levied against it exceeded that autho-rized by law. The court noted that the provisionrelied upon by the Associati,dn referred to disorder-ly persoits and did not mention punishment forcriminal contempt of court. The court concludedthat the Disorderly Persons Act did not apply tocontempt of court. It also held that the amount ofthe fine did not transform the offense from a pettyone to a serious one, the latter of which wouldrequire a jury trial. The court ruled that the fineimposed on the Association was proper. The deci-sion of the trial court in all respects was affirmed.

The Supreme Court of the United States de-nied a writ of certiorari for a review of this deci-sion.

New York

Board of Education of Central School DistrictNo. 1, Town of Clarkstown v. Cracovia321 N.Y.S.2d 496Supreme Court of New York, Appellate Division,Second Department, April 19, 1971.

The school board sought to stay arbitrationwhich the teachers association had demanded. Theassociation filed a cross motion to compel arbitra-tion. The trial court ruled in favor of the associa-tion and the board of education appealed.

A clause in the negotiated agreement betweenthe parties contained a provision for maximumclass size. There was also a provision for arbitrationof grievances whereunder the decision of the arbi-trator was to be binding with respect to thosegrievances covering interpretation or application ofthe contract and advisory with respect to thosegrievances concerning provisions of the contractthat involved the board's discretion or right to set

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policy. The board argued that since the grievanceon maximum class size was in the latter categoryand the arbitration was to be advisory, the courtdid not have the power to direct arbitration of adispute which results in an award which can onlybe advisory in nature.

The appellate court disagreed with this argu-ment, stating that it was no longer necessary understate law that a contractual dispute be of a justici-able nature before binding or advisory arbitrationwill be ordered. The court did not decide whetherthe grievance was subject to advisory or bindingarbitration. Rather, the decision of the trial courtdirecting arbitration was affirmed.

Board of Education, Central School DistrictNo. 1 of the Town of Grand Island, Erie County v.Grand Island Teachers' Association324 N.Y.S.2d 717Supreme Court of New York, Eric County,September 25, 1970.

The school board sought to stay arbitration ofan alleged dispute between it and the teachers assc-elation. The contract between the parties providedfor arbitration of grievances and defined a griev-ance as a claim by any member(s) of the instruc-tional unit based upon an event or condition af-fecting their welfare and/or terms and conditionsof employment and arising from a claimed viola-tion, misinterpretation, misapplication, or inequita-ble application of the contract.

This action arose out of the termination of sixprobationary teachers. The association filed a griev-ance charging the chief school officer and theboard with violations of the teacher evaluation andprobationary teacher provisions of the contract.The board rejected the grievance at Stage 1 foralleged deficiency in form and/or specification.The association then submitted the grievance in ap-peal at Stage 2, It was rejected by the board at thatlevel and at Stage 3 on the grounds that the matterwas not gricvable. The association then served no-tice that it wished to proceed to arbitration; thiswas rejected on the ground that the matter was notarbitrable under the contract. Notice of intentionto arbitrate was then served on the board. The re-lief sought by the teachers was that the board di-rect its administrative staff to comply with the twoprovisions. In response, the school board com-menced this court proceeding.

The court held that there was a bona fideagreement between the parties, that neither fraudnor duress was alleged or inferentially present, andthat a real dispute did exist between the partiesconcerning compliance by the board with certain

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provisions of the contract. The court disagreedwith the contention of the board that performanceof the provisions under dispute would violate statelaw vesting absolute discretion in the board withrespect to termination of employment of proba-tionary teachers. It was not the termination of theemployment of the six probationary teacherswhich was at issue, the court said, but rather thealleged violation by the board of various contrac-tual provisions contained in the negotiated con-tract.

Accordingly, the petition to stay the arbitra-tion was denied, and the board was directed toproceed to arbitration.

Board of Education of Union Free School DistrictNo. 3 of the Town of Huntington v. AssociatedTeachers of Huntington319 N.Y.S.2d 469Supreme Court of New York, Appellate Division,Second Department, March 22, 1971.

(See Teacher's Day in Court: Review of 1970, p.57.)

The board of education sought a judgment de-claring that certain portions of the contract be-tween it and the Associated Teachers of Hunting-ton was unconstitutional and unlawful. The trialcourt upheld parts of the contract and struck downothers, and both parties appealed.

The appellate court agreed with that portionof the trial court opinion upholding certain por-tions of the contractthose involving the liabilityof the school board to reimburse teachers for re-placement of eyeglasses and dentures and replace-ment or repair of clothingodamaged or destroyed inthe course of the performance of the teachers' du-ties, and the payment of a retirement award duringthe teacher's final year of teaching prior to retire-ment. Reversing the lower court, the appellatecourt ruled that the provision in the contractwhereby the board agreed to pay the tuition forapproved graduate studies that a teacher mighttake was merely an undertaking to pay "a furtherrelatively small salary increment to teachers whoare improving their skills." The appellate courtheld that the board had the power to make thesepayments, especially since they would further thestatutory public purpose of improving the skills ofteachers in their professional capacity.

The appellate court also was of the opinionthat a board of education is better qualified todecide whether a teacher should be dismissed forincompetency or misconduct than an arbitrator,and since the dismissal of a teacher for incompc-

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tency or misconduct is a matter of vital importanceto the public and especially school children whoare affected thereby, the contractual delegation toan arbitrator of the power to determine whether ateacher should be dismissed is void as against majorpublic policy. For these reasons the decision of thetrial court declaring the delegation illegal was af-firmed.

NOTE: The New York Court of Appeals, the high-est state court, ruled on March 16, 1972, that allthe provisions in the negotiated agreement whichthe school board challenged are valid. Eachprovision constituted a term and condition of em-ployment as to which the school board was re-quired to negotiate under the Taylor Act. Underthat act, the court stated, "the obligation to bar-gain as to all terms and conditions of employmentis a broad and unqualified one, and there is noreason why the mandatory provision of that actshould be limited, in any way, except in caseswhere some other applicable statutory provisionexplicitly and definitively prohibits the public em-ployer from making an agreement as to the particu-lar term or condition of employment." The Courtof Appeals reversed the lower court and held thatthe grievance procedure in the negotiated agree-ment providing that any dispute on the existenceof cause for disciplinary action or dismissal of atenure teacher may be submitted to arbitration wasvalid. The court said that the board is not prohib-ited from agreeing that a teacher may choose arbi-tration as a method of reviewing its determinationdespite the fact that the state tenure law providesprocedures whereby a teacher may challenge an ad-verse action of the school board. 331 N.Y.S.2d 17(1972).

Board of Education, Union Free School DistrictNo. 7 v. Deer Park Teachers' Association322 N.Y.S.2d 110Supreme Court of New York, Special Term,Suffolk County, April 8, 1969.

The school board sought a stay of the arbitra-tion of two grievances which was demanded by theteachers association. The first grievance involvedthe refusal of the district principal to grant supple-mentary leave to a teacher to permit her to appearas a plaintiff in a California court case. The secondconcerned the refusal of the district principal togrant religious leave to a teacher whose husbandwas the rabbi of an orthodox Jewish temple bydeducting the leave from her accumulated sickleave in accordance with past practices of theschool district.

The First contention of the board in seekingthe stay or arbitration was that the subject matterof the grievances was not arbitrable under theterms of the contract since neither leave was listedin the category of supplementary leave in the con-tract between the parties, and that this omissionreserves the regulation of such leave to the boardpursuant to the Education Law. The court did notagree with this contention, stating that state lawprovides for negotiation on terms and conditions ofemployment and that the supplementary leave sec-tion of the contract specifically confers the author-ity to grant such leave on the district principal. Thenext claim of the school board was that the noticeof appeal to arbitrate was improperly served. Thecourt found this argument likewise without merit.

In addressing itself to the question of arbitra-bility, the court noted that the entire purpose ofthe contract, as conceded by the school board, wasto effectuate the state law governing public em-ployees' right to collective bargaining on "termsand conditions of employment" and the "administration of grievances." The contract at issue definesgrievance as "any dispute between the parties here-to with respect to the meaning or interpretation ofany provision of this agreement." The sentence onsupplementary leave in the agreement provides that"the District Principal has additional discretionaryauthority to grant leaves on request for any situa-tion not specifically covered under our present pol-icy. Such authority may cover both deductible andnon-deductible leaves, with or without pay." Theboard of education argued that present policy re-ferred to the instant contract, while the teachersassociation contended that the phrase referred to aviable pre-existing policy incorporated into thecontract by reference. The court held that sinceunder the terms of the contract a grievance meansany dispute concerning the interpretation of a pro-vision or the contract, the questions of whether thegrant of discretionary 'authority to the DistrictPrincipal was absolute, and the meaning of presentpolicy were subject to arbitration. The petition ofthe school board to stay arbitration was denied.

Buffalo Teachers' Federation Inc. v. Ilelsby316 N.Y.S.2d 125Supreme Court of New York, Appellate Division,Third Department, December 7, 1970.

The Buffalo Teachers' Federation appealedfrom a lower court judgment dismissing their peti-tion seeking to restrain the Public Employment Re-lations Board (VERB) from prosecuting a chargeagainst the Federation for violation of the no-strike

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law. The Federation maintained that PERB was ex-ceeding its jurisdiction on the ground that since theteachers had been found by the chief executiveofficer of the school district not to have engaged ina strike, the employee organization could not be inviolation of the law.

The court found that under the law, PERB hasno responsibility with respect to violations by indi-vidual employees but it is authorized to instituteproceedings to determine if an employee organiza-tion has violated the statute. The penalty for suchviolation is the loss of the right to have member-ship dues deducted from employee paychecks. Thecourt ruled that the proceeding against the organi-zation was separate and distinct from any determi-nation as to an individual employee's violation ofthe statute and, as such, PERB was entitled to in-stitute the proceedings. Further, determination ofthe chief executive officer was an administrativedecision without a hearing and was not bindingupon PERB in proceeding against the employee ororganization.

The court also ruled that the notice mailed tothe president of the Federation was in compliancewith law. The court ruled further that the no-strikelaw as applied to public employees was constitu-tional.

The judgment of the trial court dismissing thecomplaint of the Federation was affirmed.

Caso v. Katz324 N.Y.S.2d 712Supreme Court of New York, Special Term,Nassau County, Part I, September 30, 1971.

Nassau Community College and various countyofficials sought an injunction against the faculty ofthe college, the Faculty Association, and its offi-cers, to enjoin what they described as a strike. Theresponse of the teachers was that they were per-forming their duties in the "normal manner" andtherefore not on strike.

It appeared that under a negotiated agreementthat expired August 31, 1971, the teachers, with afew exceptions, were required to teach 12 hoursper week. In the last legislative session a bill hadpassed both houses that would have required thecounty to adopt a 1 5-hour contact-teaching sched-ule. The county made plans for the 15-hour pro-gram under this bill which was subsequently vetoedby the governor. The teachers at the college hadrefused to teach more than the 12 hours requiredunder the expired contract, and negotiations brokedown on reaching a new contract.

The court noted that strikes by public employ-ees are forbidden by statute, which recites that

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"absence from work or abstention wholly or inpart from the full performance of duties in normalmanner creates a presumption that the strike ex-ists." The phrase "normal manner" as the courtconstrued the statute, did not mean length ofhours of employment but rather the fashion inwhich the duty is discharged.

The court found that the teachers were publicemployees, that their contract had expired, andthat they were engaged in a strike. Therefore, thecourt felt constrained to issue the injunction with-out a consideration of the merits or the contro-versy. The court did state that at the request of theparties, it would be available to participate in fur-ther discussions.

Cirillo v. Board of Education of the City SchoolDistrict of the City of Niagara Falls321 N.Y.S.2d 952Supreme Court of New York, Niagara County,June 15 1971.

Six Niagara Falls teachers contending that theywere representative of a class of 687 teachers,sought to require the superintendent to returnmoney deducted from their paychecks and to can-cel tenure forfeitures as a result of a strike in Sep-tember 8-11, 1970.

The deductions were made pursuant to thestate Taylor law providing for a deduction of twoclays' pay for every day missed because of a strike.Under this law teachers are permitted to file affida-vits in opposition to a determination that they vio-lated the law. It was conceded that none of the687 teachers had filed objection to the determina-tion or requested a hearing on the determinationwithin 20 days as provided under the law.

The teachers contended that the 50 -day delaybetween the last day of the strike, September 11,1970, and the serving of the notice that a violationhad been found, November 2, 1970, was so unrea-sonable as to render such notice or violation nuga-tory. The court disagreed, noting that the size ofthe school district and the number of teachers onstrike had to be considered in a ruling on the rea-sonableness of the time interval. The Taylor lawimposes a duty on the chief executive officer ofthe school district to make a determination afterinvestigation as he may deem appropriate. Thecourt found the time interval to be reasonable un-der all of the circumstances of the case. Also reject-ing the teachers' argument that no investigationwas necessary since the payroll records for the peri-od could have been used, the court noted that pay-roll records had deductions for absences in addi-tion to those made on account of the strike.

1C3

Concluding that the determination was timelymade and that the deductions were appropriate,the court granted the motion of the superintendentand school board to dismiss the action.

Ewen v. Board of Education of Union Free SchoolDistrict No. 18323 N.Y.S.2d 789Supreme Court of New York, Special Term,Nassau County, Part I, July 15, 1 9 7 1;on reargument August 4, 1971.

The president of the Plainridge Federation ofTeachers sued the board of education seeking tocompel it to grant sabbatical leaves of absence. Thecase arose as a result of the enactment of a 1971state law barring sabbatical leaves for public em-ployees for the 19 7 1-7 2 year unless a contractualright to such leave existed as of April 12, 1971.

The teachers union and the school board had anegotiated agreement providing that "a sabbaticalleave of absence may be granted for study or trav-el." The contract also provided that the board ofeducation reserved the right to reject any and allapplications for leave. On March 30, 1971, one ofthe teachers in the school system applied for leave.Admittedly, the request was denied because of thenew state law.

The question before the court was whether avested contractual right to the leave existed priorto April 12, 1971. Looking at the language of thecontract the court decided that it did not, for no-where was the board of education bound to ap-prove any application for leave. In the absence of acontractual right to such leave, the court ruled thatthe statute operated to bar such leave. Accordinglythe petition of the teachers was dismissed.

The court later granted reargument because ofthe contention of the teacher who was denied leavethat he had applied for a summer sabbatical leaveand that this was not prohibited by the statute.Under the statute sabbatical leave did not includevacation time. However, the court noted that ateacher is an employee of the school system allyear, not only for 10 months. Accordingly, to paya teacher on summer sabbatical would also be aviolation or the statute. The previous decision ofthe court was affirmed.

Hauppauge Classroom Teachers Associationv. Millman317 N.Y.S.2d 461Supreme Court of New York, Appellate Division,Second Department, November 30, 1970.

(See page 75.)

In re Lakeland Federation of Teachers, Local 1 760317 N.Y.S.2d 902Supreme Court of New York, Westchester County,January 28, 1971.

The board of education of Central School Dis-trict No. 1 brought an action seeking to punishcertain individual teachers and the teachers unionfor contempt of court for violating an injunction.The injunction resltaihed the individual defendantsand the union from engaging in a strike against theschool district. The injunction was in effect fromSeptember 9, 1970, but the strike continued untilSeptember 16, 1970.

In this proceeding the teachers and the unionsought to vacate the order to show cause why theyshould not be punished for contempt of court forviolation of the injunction. Their procedural argu-ments were rejected by the court. With regard tothe merits of the controversy, the court held thatthe testimony that certain of the teachers were ab-sent from school during the work stoppage andcertain of them were seen on the picket line, wasinsufficent proof that the individual teachers hadwillfully engaged in a strike in violation of the or-der of the court. However, the court held that theunion had willfully engaged in a strike in violationof the court order, for there was evidence to showthat the strike was deliberately planned and exe-cuted by the union. The court found the unionguilty of criminal contempt for its willful disobe-dience of the court's lawful mandate and fined it$5,000..

Lawson v. Board of Education of Vestal CentralSchool District No. 1315 N.Y.S.2d 877Supreme Court of New York, Appellate Division,Third Department, November 23, 1970. Appealdismissed, 92 S.Ct. 230, October 26, 1971.

(Sec Teacher's Day in Court: Review of 1970, p.60.)

Teachers in the Vestal school district appealedfrom a trial court judgment dismissing their com-plaint. New York law provides that teachers whohave engaged in a strike shall have two days' paydeducted for every day on strike. The teachers hadchallenged the constitutionality of the law, and thelower court upheld the statute.

The appellate court found that the teachershad been adequately notified by letter that thechief executive officer of the district had foundthem in violation of the anti-strike statute. Theappellate court held that the system of review byobjection to the board's determination that the

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teachers had engaged in an illegal strike was notnecessarily inadequate to satisfy the requirementsof due process since the teachers could have soughtadministrative review of the board's determinationbut did not attempt to utilize this procedure. Thisfailure foreclosed consideration by the court as towhether there was any strike or whether the indi-vidual teachers who received the not ice had struck.

The court also found no merit to the conten-tion of the teachers that the ,statute prohibitingstrikes by public employees and imposing sanctionswas unconstitutional. The dismissal of the teachers'complaint was therefore upheld.

NOTE: The Supreme Court 'of the United Statesdismissed an appeal from this decision for want ofa substantial federal question.

Lehman v. Dobbs Ferry Board of Education UnionFree School District No. 3, Town of Greenburgh323 N.Y.S.2d 283Supreme Court of New York, Westchester County,June 7, 1971.

The Dobbs Ferry Teachers Association soughta court order compelling the arbitration of a dis-pute. The school board denied that the matter wasarbitrable.

The contract in effect between the parties pro-vided for arbitration of "agreement grievances"arising out of an alleged violation, misinterpreta-tion, or inequitable application of the terms of thecontract. The contract also recognized that theboard had the right and responsibility to direct theoperation of the schools in all aspects authorizedby statute and that this right would not be exer-cised "in a manner inconsistent with or in violationof this agreement and/or applicable statutes."

The dispute giving rise to this suit occurredwhen the board dismissed a probationary schoolnurse. The position of school nurse is classified as acivil service position. It was the position of theassociation that the nurse was not dismissed in ac-cordance with the applicable civil service rules and,therefore, the contract provision referring to appli-cable statutes was violated, creating an "agreementgrievance" subject to arbitration. The school'boardargued that whether or not this was an arbitrablegrievance was a decision to he made by the courtand further that this was not an "agreement griev-ance" requiring arbitration.

The court said that the heart of the issue herewas the right of the school board to run the dis-trict. It pOinted out that the probationary status ofthe nurse was governed by the county civil servicerules, which the court noted were not statutes.

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1 08

The court found that the collective bargainingagreement specifically established in the personalgrievance procedure provisions for treating a dis-pute involving a single employee appointed by andunder the sole authority of the board. The courtalso found that the parties to the agreement hadagreed to preserve the board's power to run thedistrict in the very same paragraph that the associa-tion and the nurse were relying on to turn thedecision-making process over to the arbitrator. Thecourt said that what was involved here was a per-sonal right of the employee involved and not "aviolation, misinterpretation or inequitable applica-tion of the agreement." This decision, the courtsaid, was not leaving the nurse without a remedy,just that her remedy was not to be determined byarbitration. If a violation existed, it could be de-termined in administrative and judicial proceed-ings. The application of the association for an or-der directing arbitration was denied.

Mahopac Teachers Association v. Board ofEducation, Central School District No. 1323 N.Y.S.2d 997Supreme Court of New York, Putnam County,July 9, 1971.

In this action the teachers association contend-ed that a contractual right existed for sabbaticalleave prior to the effective date of a 1971 state lawdeclaring a moratorium on such leaves. The crucialdate was April 13, 1971.

The court found that the enforceable contract-ual right referred to in the law was one existingbetween the individual teacher and the board, notbetween the association and the board. In this in-stance the final stepprovided for in the procedurefor granting sabbatical leaves was not accomplisheduntil April 20, 1971. This, the court ruled, broughtsuch action within the proscription of the law andthe leaves would not be permitted. Judgment wasrendered for the board of education.

Maslinoff v. Central School District No. 1323 N.Y.S..2d 1005Supreme Court of New York, Dutchess County,July 22, 1971.

The president of the Wappinger Central SchoolFaculty Association and three other teachersbrought a class action challenging deductions ofpay made because of a strike. Over 400 teachershad been penalized in this manner. The superinten-dent had made separate findings of a violation withrespect to each of the teachers, and only one per-son had filed a protest as authorized by law.

The court ruled that this was not an appropri-ate class action. For although the teachers had acommon complaint, there was an individual reviewand determination of the penalty that had beenmade on the basis of individual acts. In any event,the court held, other than the one person who fileda protest, judicial review was not available to theother teachers because they had not filed a protestwithin 20 days of being notified that they werefound to be in violation of the law by striking. Theproceeding was dismissed.

North Salem Teachers Association v. Board ofEducation, Central School District No. 1323 N.Y.S.2d 996Supreme Court of New York, Westchester County,July 2, 1971.

The teachers association and three individUalteachers sued the board of education, seeking tocompel it to grant sabbatical leaves to the threeteachers. At issue was a 1971 state law declaring aone-year moratorium on sabbatical leaves unlessthere existed a contractual right to such leave as ofApril 13, 1971.

The association maintained that this right wasin existence, arguing that a clause in the contractproviding for the continuation of present school-board rules and regulations covered the area ofleaves. The board argued that since the associationand the board had never agreed on sabbatical leavesin the present contract, there was no contractualright.

The court found it undisputed that the proce-dures in the rules and regulations regarding sabbati-cal leaves were fully complied with by the threeindividual teachers prior to the effective date ofthe state law. The court held that this constituted acontractual right. The board of education was di-rected to grant the sabbatical leaves to the threeteachers.

Schwartz v. North Salem Board of Education318 N.Y.S.2d 774Supreme Court of New York, Westchester County,January 18, 1971.

A science teacher brought court proceedingsseeking to confirm what he alleged was an awardgranted him by an arbitration hearing. He urgedthat by virtue of the award he was entitled to ei-ther sabbatical leave or the sum of $8,000, repre-senting one-half his annual siilary.

The teacher had requested sabbatical leavefrom the school board; this request was denied.Ultimately the parties agreed to submit the matterto arbitration. The contract between the board and

the teachers association called for the submissionof all disputes to advisory arbitration.

In view of the precise language in the contractthat arbitration was advisory only, the court ruledthat no enforcible right was given the teacher fromthe findings of the arbitrator. The motion of theteacher for confirmation of award was dismissed.

Wilson v. Board of Education, Union Free SchoolDistrict No. 23, Town of Oyster Bay319 N.Y.S.2d 721Supreme Court of New York, Special Term,Nassau County, Part 1, December 10, 1970.

Teachers sought to prevent the school boardfrom making payroll deductions at the rate of twodays' pay for each day of a strike. The teachers hadbeen absent from their classes from May 7, 1970,through May 21, 1970. On May 7, the superinten-dent of schools made a determination that a strikeexisted and that the teachers would be subject tothe payroll deductions. Pay for one day was de-ducted from the salary of each striker, but theteachers were successful in preventing the threaten-ed deduction for the second day in a prior proceed-ing. There the court ruled that the actions of thesuperintendent were not in strict compliance withthe statutory requirements and therefore his deter-mination could not stand.

On May 26, 1970, the superintendent madethe findings required by statute. Under the statute,however, payroll deductions cannot be' made soon-er than 30 days (June 25, 1970) nor later than 90days (August 24) after the determination. In thatperiod there would be no salary payments fromwhich deductions could be made because teacherswere being paid on a 10-month basis, excludingJuly and August.

Apparently with this in mind, the superinten-dent made a "final determination" on August 10,1970, which would have extended the period dur-ing which deductions could be made into Septem-ber.

The court ruled that this effort of August 10,1970, was ineffective. The May 26 determinationcomplied with all of the statutory requirements,and there was no difference between it and thelater determination which was made only as an at-tempt to come within the statutory requirements.The court said that were the superintendent per-mitted to extend the limitation period prescribedin the statute by merely making additional "deter-minations" in the absence of new facts presentedto warrant further action, the purported advantageof the statute to prevent unreasonable delay wouldbe thwarted. Accordingly, since the action of the

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superintendent in making payroll deductions laterthan 90 days following his initial determinationwould violate the state law, the school district waspermanently enjoined from making any deductionas a penalty for the strike which occurred fromMay 7 to May 21, 1970.

Rhode Island

Providence Teachers Union, Local 958 v. SchoolCommittee of the City of Providence276 A.2d 762Supreme Court of Rhode Island,April 23, 1971.

The school committee appealed from the orderof the trial court confirming an award made by anarbitration board. The arbitration board had order-ed the school committee to pay as severance payretirement benefits to teachers at time of retire-ment after 35 years of service, calculated on thebasis of unused sick leave. This provision was con-tained in the contract between the school commit-tee and the union . negotiated in May 1968 for the1968-69 school year.

Shortly after the contract was negotiated, anew state law became effective, allowing voters in acity to choose an elected or an appointed schoolcommittee. The Providence school committee atthat time was elected. The voters of the city chosean appointed committee that would not be fiscallyindependent and would receive an appropriationfrom the city. Shortly after thenew committeetook office, it passed a resolution repudiating theseverance pay provision of the contract because ofthe unavailability of funds.

The union challenged the action of the com-mittee through the arbitration provisions of thecontract which required submission of a grievanceto binding arbitration. A grievance was defined as"a violation, inequitable application, ... or misrep-resentation," of the contract. A majority of thearbitration board ordered payment of the retire-ment benefits.

The school committee first argued that its pre-decessor had no specific legislative authority to en-ter into the agreement for binding arbitration. Tosupport this contention, the committee pointed tothe inclusion in the firefighter's and policemen'sarbitration acts and the corresponding absence inthe teachers' arbitration act of specific languageproviding for arbitration of disputes. The courtfound the difference in language to be the result ofthe difference in legislative draftsmen and nothingelse. Additionally, the court found it apparent thatthe legislature intended that organizations of pub-

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lic employees would have the same rights as theircounterparts in the private sector except those thatmight be specifically withheld, such as the right tostrike. Therefore, the court held that the teachersunion had the right to provide in its contract withthe school committee for the arbitration of griev-ances arising out of the contract and that theschool committee was bound to submit the issue ofseverance pay to arbitration. Also rejected by thecourt was the school committee's argument thatthe arbitration board award must be by unanimousvote. The court said a majority vote was all thatwas required in view of the absence of specific lan-guage to the contrary in the contract.

The school committee argued further that theseverance pay clause is prospective only in its op-eration and is not applicable to any teacher retiringprior to the year 2003; otherwise any sums paidwould be a "gratuity" for work already performed.The court found nothing in the nature of a gratuityin the award. It said that the clause serves a usefulfunction in the educational scheme. The paymentof accumulated sick leave after 35 years of service"acts as an inducement to teachers to remain in theschool system and deters absenteeism for triflingailments." In the opinion of the court, the retire-ment award was a proper provision to be includedin the contract.

The final school committee argument was thatit lacked the funds to pay the award to the 11teachers who had retired under the provisions ofthe contract. The court found lack of funds wasnot a legal basis for the repudiation of a contract-ual obligation. The appellate court said that themoney due .the teachers who had retired was a debtof the city and if the city council would not appro-priate the money after this case was remanded, theteachers could file suit against the city treasurer.The judgment of the trial court confirming theaward of the arbitrator was affirmed and the mat-ter remanded.

Ricciotti v. Warwick School Committee319 F.Supp. 1006United States District Court, D. Rhode Island,November 6, 1970.

(Sec page 96.)

Wisconsin

Board of Education of Unified School DistrictNo. 1 v. Wisconsin Employment RelationsCommission191 N.W.2d 242Supreme Court of Wisconsin, November 5, 1971.

The school district and the Ashland Federationof Teachers (AFT) sought review of an order of theWisconsin Employment Relations Commission(WERC) that determined that the board and theunion had discriminated against the Ashland Edu-cation Association (AEA). The problem concernedthe timing of state and regional conventions of thetwo organizations. Prior to 1966, the WisconsinFederation of Teachers (WFT) and the WisconsinEducation Association (WEA), the respective stateorganizations with which the local associations areaffiliated, held their state conventions at the sametime in November. Since that time WFT holds itsconvention in October on the same dates as theregional affiliate of WEA and AEA. The WEA stateconvention is still held in November.

During 1966 and 1967, all teachers in the Ash-land district who attended either the WFT or theregional convention in October were permitted tocount those days as inservice days, and nothing wasdeducted from their salaries. Additionally, the Ash-land school board permitted two representatives ofthe AEA to attend the WEA state convention inNovember without loss of pay. In May 1968, theAFT, as majority union and bargaining representa-tive for all teachers, negotiated an agreement withthe school board which included a provision fordays off with pay for teachers who wished to at-tend the 1VFT state convention. No similar provi-sion covered the regional or WEA conventions. Inresponse to a request for a clarification, the super-intendent of schools advised that teachers who at-tended conventions other than the WFT state con-vention would not be paid for those days. TheAEA and an individual member then complainedto the WERC which ordered the school board tocease and desist from giving effect to the provisionin the collective bargaining agreement unless it con-tained a similar provision applicable to other con-ventions on the same dates or from entering intoan agreement that contained such a prow lion with-out providing that teachers may also attend otherconventions scheduled by other teacher organiza-tions on the same dates. The board was also direct-ed to cease deducting payments from the salariesof teachers who attended conventions other thanWFT on the same dates. The board was directed toreimburse those AEA teachers who attended theOctober regional convention for the loss of pay.The board and the AFT sought judicial review ofthe WERC order. The lower court agreed that therehad been a prohibited discriminatory practice.However, the court modified the WERC order toprovide that the board must provide days off withpay to all teachers if it grants days off with pay forany teachers, and that all teachers may attend the

convention of their choice no matter when it is

held. All parties then appealed.The appellate court first considered if the con-

tract clause granting time off with pay only forattendance at the WFT state convent ion was discri-minatory. It concluded that since AFT (the WFTaffiliate) as the majority union and exclusive bar-gaining agent for all teachers was empowered tonegotiate for all teachers on wages, hours, and con-ditions of employment, and convention days fellwithin the negotiation area, the questioned clausetreated the members of the majority union prefer-entially. This was discriminatory treatment in vio-lation of the laws governing public employees. Theappellate court ruled that both the union and theboard were guilty of discrimination because theyagreed to the contract provision "which had theeffect of discouraging membership in the minorityunion by affecting the terms and conditions of theiremployment." The clause was declared void.

The appellate court then considered the validi-ty of the WERC cease and desist order and thelower court modification of that order. Under statelaw, WERC has substantial powers to fashion reme-dies, including requiring affirmative action. Butwhere the duties and powers of school boards andthe duties and powers of WERC conflict, courts,by statutory construction, must resolve the issue.State law defines school days as days on whichschool is actually in session and days on whichslate teachers conventions arc held. The law hadformerly provided for both state and county con-ventions but had been amended: Another sectionof state law provides that boards of education maygive teachers time off to attend a teachers educa-tional convention. The court was of the opinion

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that this section gave the board discretionary pow-er to grant time off with pay to any teacher toattend any education convention, but the exerciseof this discretion must not be unreasonable, ille-gally motivated, or arbitrary, Under the contract,teachers attending the WFT convention in Octoberwere given time off with pay which was within thepower of the board to agree to. The prohibiteddiscrimination occurred, the court said, when thecontract was interpreted as excluding teachersfrom attending any other educational conventionsponsored by the competing minority organizationon those dates in October or any other dates. Thecourt pointed out that under the law the boardcould have permitted teachers of the minority or-ganization to at tend the regional convention on thesame dates, or their state convention on differentdates, with pay, but did not. To so decide waswithin the school board's .power and discretionwhich WERC could not overlook. The court heldthat the specific school statutes prevailed over gen-eral municipal employees statutes where both can-not be given effect or harmonized.

Accordingly, the appellate court determinedthat the IVERC order insofar as it required pay-ment of salary to those teachers attending the Oc-tober regional meeting must be reversed. The appel-late court also reversed that portion of the lowercourt order directing that teachers attending theNovember IRA convention be paid their salary forthe days spent at the convention.

The appellate court affirmed those portions ofthe WERC order, and the trial court order thatfound a discriminatory practice had been commit-ted. Those portions of both orders providing foraffirmative relief were reversed.

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LEAVES OF ABSENCE

Georgia

finks v. Mays332 F.Supp. 254United States District Court, N.D. Georgia, AtlantaDivision, September 28, 1971.

A non tenure teacher was re-elected as a proba-tionary teacher for the 1970-71 school year in theAtlanta school system. During the summer of 1970her attorney wrote to the principal of her school,stating that the teacher was pregnant and was look-ing forward to rejoining the Faculty alter the birthor her child in October. The school superintendentreplied that as a probationary teacher she was noteligible for maternity leave and that her employ-ment status would be listed as "resigned." Theteacher then brought this suit as a class action seek-ing injunctive and declaratory relief. She assertedthat the maternity leave policy of the school boardwhich grants leave to tenure teachers and deniesthe same leave to nontenure teachers is arbitraryand violative of the equal protection clause of theFourteenth Amendment.

The first argument of the school board wasthat the teacher lacked standing to bring the suit.It claimed that when she accepted the offer of theboard for a 1970-71 contract, she knew that shewas pregnant and, therefore, unable to perform thecontract since probationary teachers are not eligi-ble for maternity leave. As a result, argued theboard, her contract was void from its inception andshe had no standing to sue. In disagreeing with thisargument, the court noted that the evidence reveal-ed no policy of the board specifically prohibitingnontenure teachers from accepting an offer toteach. One regulation of the board provided thatalthough nontenure teachers were not eligible formaternity leave, they should comply with the re-quirements of the policy on maternity leave. Theregulations required that the application be madeone month prior to such leave and that leave com-mence at least four months prior to the expectedbirth of the baby. The regulation, the court said,apparently means that nontenure' teachers shouldgo through the procedure of applying for materni-ty leave. However, since the board did not grant

maternity leave to nontenure teachers, it was notclear when they were supposed to file their appli-cations For leave. At the most, the teacher was latein filing for leave that she could not get, and underthe board rules she may have forfeited her nonexis-tent right to return to her job earlier than 12months alter the birth of her child. The court heldthat the teacher did have standing to bring the suitbecause she had a personal stake in the outcome ofthe controversy.

Considering the case on the merits, the courtagreed that the authority or the school board toissue regulations For various types of leave For bothtenure and nontenure teachers stems from theteacher tenure act applicable to Atlanta. All of thevarious types or leaves granted, except maternityIcave, were available to both tenure and nontenureteachers. Therefore, to withstand constitutionalchallenges, the classification that treats tenure andnontenure teachers differently for maternity leavemust be rational and it must bear a "relevance tothe purpose for which the legislation was enacted."

The school board rationalized the differenceby arguing that one of the purposes or the teachertenure act was to provide for meaningful evalua-tion of nontenure teachers and that if they wereallowed maternity leave, which it said averaged sev-en months, there would be insufficient time forsuch evaluation. The court would not accept this asthe rational basis for the maternity leave policysince the board may extend the probationary peri-od. In fact, the court noted that the board chose tore-elect the teacher in this case for a fourth year onprobationary status, presumably because she wasqualified enough to warrant further evaluation.Moreover, the court found that nontenure teacherswere permitted to go on professional study leavefor a one-year period. Also, military leave could begranted to nontenure teachers for a two-year peri-od. In these cases, the court said, the same evalua-tion problem would arise, yet leave was granted.

The board also claimed that since the purposeof the teacher tenure act was to place nontenureteachers on an annual contract basis, granting themmaternity leave would run counter to this design.The court again pointed out that this was not a

rational basis for the policy since nontenure teach-ers could be granted leave for professional study.Furthermore, no restrictions were placed on theduration of sick leave granted nontenure teachers.

Another board argument against granting ma-ternity leave to nontenure teachers, also rejectedby the court, was that the tenure act would requirethe board to place tenure teachers in the schoolsystem when they returned from such leave andalthough the board was currently able to do so, itmight not be able to comply with this statutoryduty if the ranks were augmented by nontenureteachers returning from maternity leave. Assumingthis interpretation of the tenure act is correct, thecourt said, the granting of maternity leave to non-tenure teachers would in no way require that theybe placed ahead of tenure teachers in the schoolsystem or that they be placed at all if no positionswere available. The reason that this teacher wantedmaternity leave was so that she would at least havea preference over teachers who had never been em-ployed by the Atlanta school system. The courtalso noted that, to date, the board had been able toplace nontenure teachers returning from maternity"resignation." This argument, the court ruled,could not be the rational basis required for thisclassification.

The court concluded that the policy denyingmaternity leave to nontenure teachers was arbi-trary, and had no rational basis or relevance to theteacher tenure act, or administrative purpose. Justas the school board grants study, bereavement, per-sonal illness, emergency, and military leave to bothtenure and nontenure teachers, so, too, it mustgrant maternity leave to tenure and nontenureteachers alike. The court declared that the policydenying maternity leave to nontenure teachers wasin violation of the equal proteCtion clause of theFourteenth Amendment.

The teacher also sought back pay in case theboard refused to re-employ her, on the ground thather position had been filled by a new employee.Since there was no evidence that this had beendone, the court denied the claim. However, thecourt did enjoin the school board from refusing tore-employ the teacher if she chose to return and ifthere was a position available.

Louisiana

Adcock v. Red River Parish School Board250 So.2d 246Court of Appeal of Louisiana, Second Circuit,June 22, 1971.

(Sec page 122.)

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Michigan

Rumph v. Wayne Community School District188 N.W.2d 71Court of Appeals of Michigan, Division 1,March 2 4, 1971; rehearing denied May 11, 1971.

(See page 40.)

New York

Board of Education, Union Free School DistrictNo. 7 v. Deer Park Teachers' Association322 N.Y.S.2d 110Supreme Court of New York, Special Term,Suffolk County, April 8, 1969.

(Sec page 104.)

Board of Education, Union Free School DistrictNo. 18 v. Boken316 N.Y.S.2d 286Supreme Court of New York, Special Term,Nassau County, Part I, December 9, 1970.

(See page 21.)

Coffee v. Board of Education of the City ofNew York319 N.Y.S.2d 249Supreme Court of New York, Special Term,Kings County, Part I, March 8, 1971.

A former teacher (guidance counselor) soughtan order requiring that certain sick leave and sum-mer salary payments be made to her.

The teacher had been employed by the schooldistrict from 1943 until September 11, 1970. OnAugust 28, 1969, she had applied for and wasgranted a sabbatical leave of absence covering theperiod until January 31, 1970, for restoration ofhealth. One of the conditions of the leave was thatthe teacher not engage in gainful employmentwhile on leave. During the leave the school boardwas informed that the teacher was working, and itcommenced an investigation of the matter. In Feb-ruary 1970, the teacher applied for a leave of ab-sence with pay for the spring semester because ofillness. In April 1970, she requested a retroactivechange in her leave status from sabbatical leave toleave of absence without pay and for a continua-tion of her medical leave without pay. Apparentlytinware of this request, the medical leave of ab-sence with pay through June 30, 1970, was ap-proved by the deputy superintendent. However, onMay 15, 1970, the teacher again requested that herleave status be changed retroactively to leave with-out pay and offered to refund any salary paid to

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her during the sabbatical leave conditioned on allcharges or contemplated charges against her beingdropped. This proposal was unacceptable to theboard of education; subsequently, on May 18, themedical leave of absence was denied. This suit isfor alleged salary rights during the period of medi-cal leave.

The school board alleged as an affirmative de-fense that the teacher had failed to avail herself ofthe grievance procedure set out in the contract be-tween the union and the board, and, therefore, fail-ed to exhaust her administrative remedies. Theteacher countered by arguing that she had neverreceived a final decision from which she could ap-peal, and that the collective bargaining agreementwas not applicable since she had retired on Septem-ber 11, 1970, prior to bringing suit.

The court disagreed with the teacher's conten-tions, noting that the May 18 letter from the depu-ty superintendent denying her application for amedical leave was a final ruling from which shecould appeal. The court ruled that the teachermust exhaust her administrative remedies prior tobringing suit. In this instance the decision of thedeputy superintendent could have been appealedto the superintendent. The failure of the teacher toutilize the applicable administrative procedures en-titled the school board to judgment dismissing thesuit.

Ewen v. Board of Education of Union Free SchoolDistrict No. 18323 N.Y.S.2d 789Supreme Court of New York, Special Term,Nassau County, Part I, July 15, 1971;on reargument August 4, 1971.

(Sec page 106.)

Legislative Conference of the City Universityof New York v. Board of Higher Education of theCity of New York324 N.Y.S.2d 924Supreme Court of New York, Special Term, NewYork County, Part I, June 22, 1971; on motionfor reargument, July 27, 1971.

In 1971, the New York state legislature de-clared a one-year moratorium on sabbatical leaveunless a contractual right existed prior to the effec-tive date of the legislation. The Legislative Confer-ence group representing employees) sought torcouire the board of higher education to grant sab-batical leaves to certain employees pursuant to anegotiated agreement between the parties. The

Conference claimed that the contractual right ex-isted prior to the effective date of the moratorium.

The court found that the agreement gave themembers the right to apply for sabbatical leave up-on meeting certain requirements but stated thatthe granting of such leaves was not automatic. Inview of this, the court held that no contractualright to the leave was in existence or enforceableprior to the effective date of the enactment, butonly the right to apply for the leave. Therefore, theboard was correct in refusing to grant the leaves.

On motion for reargument, the Conference al-leged that the board itself never considered the ap-plications for leave; instead they were contained asa routine item in the Chancellor's Report thatcould be adopted in a single motion. However, thecourt noted that the board resolution that pro-vided for the Chancellor's report also stated thatany board member "shall have the right to haveany item or items removed from the Chancellor'sReport and placed on the Policy Calendar by asimple request to the Chairman of the Board thatthis be done." Therefore, the court held that sincethe board reserved the right to itself to make thefinal decision to delete items from the report, thegranting of leaves could not be considered auto-matic and the contractual right to the leave did notexist as of the effective date of the legislation. Theoriginal decision of the court was reaffirmed.

Mahopac Teachers Association v. Board ofEducation, Central School District No. 1323 N.Y.S.2d 997Supreme Court of New York, Putnam County,July 9, 1971.

(Sec page 108.)

North Salem Teachers Association v. Board ofEducation, Central School District No. 1323 N.Y.S.2d 996Supreme Court of New York, Westchester County,July 2, 1971.

(See page 108.)

Valachovic v. Nyquist325 N.Y.S.2d 199Supreme Court of New York, Special Term,Albany County, Part I, August 14, 1971.

A former employee (school psychologist) re-signed his employment from Central School Dis-trict No. 1 in Ulster County in January 1970. Theboard of education refused to allow him sick leavecredits for 291/2 days on which he was absent dur-

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ing the 1969-70 school year and withheld salaryFrom him accordingly. The employee appealed tothe commissioner of education who directed theboard to pay him For Four of the days but sustain-ed the action of the board with respect to the re-maining days. The teacher then brought this appealFrom the decision of the commissioner on groundsthat is was arbitrary and unreasonable, contrary tolaw, and in contravention of the terms of the nego-tiated agreement between the school board and theteachers association.

The employee alleged that during the 1969-70school year he suffered severe headaches and dizzi-ness that rendered him unable to work, that he wasunder treatment For this condition and had beenabsent from school as a result of this illness. Healso alleged that he was injured on December 11,1969, and hospitalized on that date and the next.

From the record before the commissioner itappeared that on December 10, 1969, the directorof personnel services had written to the employee,asking for a statement From his doctor. In responsehe submitcd a statement from the doctor that theemployee "has been under my care and on chemo-therapy since November 1, 1969." The medicationthat the employee was taking was then mentioned.The superintendent of schools then wrote to theemployee, calling his attention to the provision inthe negotiated contract requiring doctor's state-ments to substantiate absences due to illness andnoting that the statement submitted did not satisfythese requirements and that salary deductionswould therefore be made for unexcused absencesunless further evidence was submitted. The em-ployee was also notified that a physician's excusewould be required For any Future absences reportedas due to illness. Further statements to the effectthat he was under treatment were then submitted.

In the hearing before the commissioner, theboard alleged that except For three days, the proofsubmitted by the employee was insufficient toshow that he was unable to perform his duties andinsufficient to satisfy the requirements of the pro-visions in the negotiated contract between theboard and the teachers association. At this hearingthe employee submitted medical statements show-ing dates or treatment. He also claimed that he hadsufficient sick leave to cover all of the days takenoff and therefore there should be no salary deduc-tions. The commissioner found that the action ofthe board was not arbitrary because insufficientmedical statements to explain the absences hadbeen submitted.

Under New York law, the decisions of thecommissioner are Final unless they are shown to bepurely arbitrary. The contract provision referred to

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in the decision of the commissioner required phy-sician's certificates For proof of illness exceedingseven clays and could be requested for lesser peri-ods. The commissioner had determined the board'sinterpretation of this provision to be reasonable.The court was unable to conclude that this deci-sion was purely arbitrary. Accordingly, the deci-sion of the commissioner was affirmed and thepsychologist's petition dismissed.

Ohio

Lafleur v. Cleveland Board of Education326 F.Supp. 1208United States District Court, N.D. Ohio, E.D.,May 12, 1971.

Two pregnant teachers sought to enjoin theCleveland school board from enforcing the provi-sions of its maternity leave regulation. The regula-tion required that maternity leave begin not lessthan Five months .prior to the expected date of thebirth of the child, that the teacher give onemonth's advance notice of intent to take maternityleave, and that the teacher return at the beginningof the regular semester Following the child's age ofthree months. Both teachers were expecting thebirth of their children during the summer of 1971.The First teacher did not request maternity leave;rather, the regulation was enforced against her. Thesecond teacher applied for maternity leave prior tobeing forced to take leave.

The teachers contended that the maternityleave provision was discriminatory against them asfemale employees and that it deprived them oftheir constitutional rights, privileges, and immuni-ties. They sought a declaratory judgment declaringthe regulation unlawful and injunctive relief to barits enforcement.

The school board maintained that the regula-tion was a valid exercise of their statutory authori-ty to make rules and regulations for its governmentand the government of its employees and pupils,and that it violated no constitutional right of theteachers.

The evidence indicated that the maternityleave regulation had been adopted in the early1950's upon request of the school superintendent.Prior to this time no such regulation existed. Theevidence also showed that prior to the adoption ofthe regulation, pregnant teachers had been subjectto various indignities from students such as point-ing, giggling, laughing, and making snide remarks,causing interruption and interference in the class-room. Witnesses For the school board also testifiedas to the recent increased violence in the public

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schools, including attacks on teachers by students.The court additionally took note of the variousmedical complications that could possibly resultfrom pregnancy that would be injurious to theteacher.

It was the opinion of the court that all of thisevidence indicated that the primary purpose of theregulation was to protect the continuity of theclassroom program and to keep disruption of theprogram to a minimum. Also, that the other por-tions of the policy, the requirement for advancenotice and not returning to the classroom until aspecified time, were designed for the same pur-poseto preserve the continuity of the program.The notice portion was to prevent sudden leavingby the teacher and to permit the substitute to be-come accustomed to the classroom routine. Andthe provision which permits the teacher to returnat the start of the semester following the child'sage of three months, was designed to protect thehealth of the mother and child and to preserve thecontinuity of the classroom program. For thesereasons, the court found that the regulation wasentirely reasonable.

The court also ruled that the teachers were notdiscriminated against by reason of their sex. Thecourt concluded that no constitutional rights ofthe teachers had been violated by the school boardand denied their requested relief.

Virginia

Cohen v. Chesterfield County School Board326 F.Supp. 1159United States District Court, E.D. Virginia,Richmond Division, May 17, 1971.

A teacher brought a civil rights action againstthe board of education, 'challenging its maternityleave regulations. The teacher charged that re-quiring her to take a leave of absence at the end ofher fifth month of pregnancy violated her constitu-tional rights by discriminating against her as a

1 if

woman, thereby violating the equal protectionclause of the Fourteenth Amendment.

On November 2, 1970, during her third year ofemployment, the teacher wrote to the schoolboard that she was expecting a child about April28, 1971, and asked that maternity leave be madeeffective as to her on April 1, 1971. Leave wasgranted, effective December 18, 1970, pursuant tothe maternity leave provisions and the request ofthe teacher that the leave begin on the later datewas denied. The basis for the board's decision wasthat even though the teacher was and is consideredto be an excellent teacher, the board had a replace-ment available and felt it proper to abide by theregulation.

The court found no medical or psychologicalreason for the board's regulation. The court saidthat since no two pregnancies are alike, decisionsof when a pregnant teacher should discontinueworking were best left to the teacher and her doc-tor. In addition, the court found untenable the ad-ministrative reasons advanced by the school boardin defense of the provision for a mandatory leaveof absence. The reasons given, fear of pushing withresulting injury to the fetus and inability to carryout fire drills, were found by the court to be nuga-tory and without any empirical data. The court.held that the maternity policy of the school board"denies pregnant women . . . equal protection ofthe laws because it treats pregnancy differentlythan other medical disabilities. Because pregnancy,though unique to women, is like other medicalconditions, the failure to treat it as such amountsto discrimination which is without rational basis,and therefore is violative of the equal protectionclause of the Fourteenth Amendment." According-ly, the court ruled that the teacher was entitled tobe put in the same position as she would have beenin had she taught until April 1, 1971, with therelief including recovery of salary for the monthsof January, February, and March 1971, seniorityentitlement, and any other rights and benefits shewould have received.

LIABILITY FOR STUDENT INJURY

Kentucky

Copley v. Board of Education of Hopkins County466 S.W.2d 952Court of Appeals of Kentucky, May 7, 1971.

An injured school girl brought suit against theboard of education, its members, the county super-intendent, and the principal. She sought damagesfor injuries allegedly suffered when she was struckby a swing on the playground of the public schoolthat she attended.

The complaint charged that the individual de-fendants were guilty of gross negligence and care-lessness in operating and supervising the play-ground. Further, that the superintendent and theindividual board members failed to exercise ordi-nary care in employing persons to operate and su-pervise the playground. The girl charged that herinjuries were proximately caused by this allegednegligence.

The trial court dismissed the complaint as toall of the defendants, and the student appealed,urging that the doctrine of sovereign immunityshould be abrogated and that summary judgmentwas improper. The appellate court refused to abro-gate the doctrine of sovereign immunity and heldthat the board of education was correctly dismiss-ed as a defendant. However, the appellate courtruled that the trial court erred in granting summaryjudgment in favor of the other defendants since theevidence before the trial court was insufficient toestablish that there was no genuine issue of materi-al fact. For this reason the decision of the trialcourt was reversed as to all defendants except theboard of education.

Cox v. Barnes469 S.W.2d 61Court of Appeals of Kentucky, June 25, 1971.

The father of a deceased high-school studentbrought a wrongful death action against a teacher,the school athletic director, and the principal. Thetrial court dismissed the suit as to the principal.After a jury trial a verdict was rendered in favor ofthe teacher and the athletic director. The fatherappealed.

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The student, aged 18, and other members ofhis senior class had been attending a class outingwhen the student drowned. It appeared that in Oc-tober 1968, prior to this accident, the CaldwellCounty School Board had resolved to discontinueschool-sponsored senior trips. However, the super-intendent had told the principal that educationaltrips were permissible, and the principal authorizedthis outing. At a class meeting, when asked if swim-ming would be permitted on the outing, the princi-pal replied that if the students were to go swim-ming, they would have to furnish their own life-guard. The same was told to the faculty memberswho accompanied the students, one of whomserved as lifeguard.

The accident occurred near a diving tank about40 yards off shore marked with an "off limits"sign. At the time, although the faculty memberswere standing on the beach, all were dressed instreet clothes. While the deceased student was at-tempting to swim to the diving tank he went underand rescue attempts by the boys accompanyinghim proved fruitless. Realizing that help was need-ed the athletic director took off his clothes andswam out but after diving many times was unableto locate the student in time to save his life.

The father argued that it was incorrect for thetrial court to dismiss the suit as to the principal.The appellate court did not agree, finding no negli-gence on the part of the principal. The court saidhe had fulfilled his duty when he gave appropriateinstructions and specified certain conditions underwhich the trip could take place.

With regard to the two faculty members pre-sent, the father claimed that they violated the or-der of the board and the oral instructions of theprincipal. He charged derelictions in that the stu-dents should not have been allowed in the water sosoon after lunch, that the signs should have beenobeyed, that the faculty members failed to checkthe water conditions, failed to have lifesavingequipment available and failed to properly observethe activities of the students. The father also ob-jected to the lack of an instruction to the jury as towhether the faculty members had the last clearchance to save the student. The appellate court

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found no error in the jury instructions becausethere was no evidence that the faculty membershad time to save the boy after the peril in which heplaced himself was discovered or discoverable.

The appellate court concluded that under theevidence of this case the jury was entitled to be-lieve that there was contributory negligence on thepart of the student. The lower court decision dis-missing the action was affirmed.

Louisiana

McDonald v. Terrebonne Parish School Board253 So.2d 558Court of Appeal of Louisiana, First Circuit,September 2, 1971; rehearing denied November 3,1971.

An elemen tary-school pupil in a special educa-tion class lost his eye as the result of an altercationwith another pupil. His parents brought suit againstthe school board, the teacher, the principal, andthe parents of the other boy. The trial court grant-ed judgment for the defendants and the parentsappealed.

It appeared from the evidence that the injuredboy had knocked over some blocks that the otherboy was playing with and a scuffle took place. Theteacher was out of the room at the time and thepupils were at a play period. The other boy pro-ceeded into the hall and picked up a broom, toldthe injured pupil that he would throw it if he cameany closer, and when the injured boy did advance,he threw the broom. The broom bounced and hithim in the face, causing the loss of his eye.

The court observed that in dealing with theintentional tort of a minor child, the case here, theparents are responsible for the injuries inflicted butonly when there is fault on the part of the child.Here the court was unable to find legal fault in theact committed by the boy who threw the broom.By the injured boy's own testimony, he was theinstigator of the initial act which began the chainof events. He continued in the role of the aggressorby following the other, smaller boy into the halland by refusing to halt when warned the broomwould be thrown. Since the other boy acted in selfdefense, he would not be liable unless he usedforce beyond what was reasonably necessary toprotect himself. Despite the tragic consequences,the appellate court held that throwing the broomwas not excessive force in self-defense. Therefore,the action against the boy and his parents was dis-missed.

Likewise dismissed was the action against theschool board, the teacher, and the principal. The

parents argued that the teacher was unqualified toteach special education classes, and that the teach-er and the principal knew of the other pupil's pro-pensities for fighting and negligently failed to takespecial precautions. The court noted -that . theteacher, who was a qualified Spanish teacher, hadreceived workshop training in special education.Neither allowing her to teach the special educationclass, nor her momentary absence from the class-room after asking the teacher next door to super-vise her pupils, amounted to negligence on her partor the part of the school board. "The fact thateach student is not personally supervised every mo-ment of each school day does not constitute faulton the part of the School Board or its employees."

Lastly, the court said that while the pupil whoinflicted the injury had been involved in fights be-fore, there were others who had been involved inmore incidents and he was not the worst pupil inthe school. In view of the fact that this was a spe-cial education class, the court stated that a recordor perfect conduct would be most unusual. Thedecision of the trial court in lavor of the defen-dants and against the parents of the injured pupilwas affirmed.

Maryland

Duncan v. Koustenis271 A.2d 547Court of Appeals of Maryland,December 11, 1970.

An injured junior high-school student appealedfrom the trial court dismissal of his suit against theteacher. The student had had parts of two fingerssevered in industrial arts class, allegedly because ofthe negligence of the teacher in improperly secur-ing a guard on an automatic planer. The only ques-tion on appeal was whether the doctrine of sover-eign immunity of the school board extended to theteacher.

The appellate court reviewed the history of thesovereign immunity doctrine as it relates to govern-mental bodies and concluded that it was so deeplyingrained in the law of Maryland that the courtwould not alter it absent legislative mandate. InMaryland, the court said, governmental immunityalso extends to nonmalicious acts or public offi-cials as opposed to public employees, acting in adiscretionary as opposed to a ministerial capacity.In applying the test or who is a public official, thecourt found it to be clear that a teacher would notqualify as a public official on these grounds: Ateacher is not required to take an official oath ofoffice, receives no commission, gives no bond, is

not commonly thought of as an officer, and doesnot exercise sovereign powers of government.Looking at other Maryland cases that also consider-ed the question, the court found that those em-ployess held to be officials held positions distin-guishable from that of a teacher.

The court accordingly held that the teacherwas not a public official, but was a professionalcontract employee and that the doctrine of sover-eign immunity did not extend to him. The judg-ment of the trial court was reversed and the caseremanded for further proceedings.

New York

Arnzlin v. Board of Education of MiddleburgCentral School District320 N.Y.S.2d 402Supreme Court of New York, Appellate Division,Third Department, April 27, 1971.

The school district and the physical educationteacher appealed from a jury verdict in favor of an

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injured pupil. The fifth-grader was injured whenshe fell or jumped while performing on rings in aphysical education class. The facts were in disputeat the trial, but there was proof that the rings wereabove the reach of the girls in the class, and two"spotters" were assigned to break a fall should amishap occur. It appeared that the teacher had notseen the fall, had never demonstrated any stunts onthe equipment, and the "spotters" were not in-structed on how to perform. Additionally, thestate physical education syllabus for the type ofequipment and age of the pupils stated: "The ap-paratus and the class should be so placed as to beentirely in view of the teacher."

The trial court charged the jury that the pupilhad the burden of proving that the teacher wasnegligent in conducting, instructing, or supervisingthe class and restricted the liability of the schooldistrict to acts of its teacher within the scope ofher employment, there having been no exceptionto this charge. The appellate court found that thejury could have reached its verdict on a fair inter-pretation of the evidence. The judgment in favor ofthe pupil was affirmed.

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MISCELLANEOUS

California

MacKay v. Rafferty321 F.Supp. 1177United States District Court, N.D. California,June 24, 1970. Judgment affirmed, 91 S.Ct. 355,December 14, 1970.

An action was brought challenging the consti-. tutionality of the teacher's loyalty oath. A three-judge district court was convened to hear the case.

The oath required the teacher, as a conditionof certification, to swear or affirm to support thestate and federal constitutions and the laws of theUnited States and California and to "promote re-'spect for the flag and . ..respect for law and orderand...allegiance to the government of the UnitedStates of America."

The court found the oath to be essentially in-distinguishable from one previously declared un-constitutional by the Supreme Court of the UnitedStates in Baggett v. Bullitt (377 U.S. 360 (1964)).Accordingly, the court declared the loyalty oathstatute unconstitutional and enjoined the stateschool officials from enforcing it directly or indi-rectly.

Monroe v. Trustees of the California State Colleges95 Cal. Rptr. 704Court of Appeal of California, Second District,Division 3, June 15, 1971.

A state college professor who was dismissed in1950 for refusing to sign the loyalty oath on con-stitutional grounds, sought reinstatement as a re-sult of the 1967 California Supreme Court decisionholding the oath unconstitutional.

Following the professor's dismissal in 1 95 0,the oath was upheld by the highest state court in asuit brought by another party. In 1953, the statepersonnel board upheld the professor's dismissalbased on the decision in that case. However, theoath was declared unconstitutional in 1967, inVogel v. County of Los Angeles (434 P.2d 161).The professor immediately applied for reinstate-ment. This was denied and suit was brought. Thetrial court dismissed the complaint and this appealfollowed.

The professor contended that Vogel should begiven retroactive application and, therefore, he wasentitled to reinstatement, lost salary, and restora-tion of his pension rights. The trustees denied thesecontentions, and claimed that suit was barred bythe statute of limitations and by laches, and thatthey were immune from liability for damages.

In advancing the defense of laches, the trusteesargued that they had been prejudiced by the 15-year delay in bringing suit, and that this delay wasper se unreasonable. The court noted that this wasno longer the law in cases involving suits for rein-statement brought by public employees. Unreason-able delay without more is not a defense.

The trustees then contended that the statuteof limitations barred suits not brought within oneyear, or three years, depending on which statuteapplies. The professor maintained that his cause ofaction did not arise until Vogel declared the oathunconstitutional. He pointed out that his dischargein 1950 and the state action upholding it in 1953were lawful and proper at that time under judicialdecisions. He argued that it would have been use-less for him to bring suit then and that only afterthe trustees refused to reinstate him followingVogel did his cause of action arise. The court didnot agree, saying that "[t] he circumstances pre-sented do not demonstrate legal or physical im-possibility, practical impossibility, or futility. Thecourts have been available to petitioner at alltimes." The court said that had the professorbrought suit within the time period allowed, hemight have been the one to have the oath declaredunconstitutional. Instead he sat idly by, .allowinghis damages to accrue and waiting for someone elseto bring suit.

The professor argued that it would have beenimpossible for him to bring suit because he had notmet the requirements to teach at that time, for hehad not signed the loyalty oath and, therefore, thestatute of limitations had not begun to run untilthe oath was struck down. The court again dis-agreed, stating that the professor's refusal to signthe oath in no way prevented him from seekingjudicial relief. Also rejected by the court was thecontention of the professor that the board of trust-ees was stopped from asserting the statute of limi-

1.2e,

tations since there was no allegation that the trust-ees did anything to induce the professor not toseek judicial relief during the statutory period.

The final contention of the professor was thatdespite the statute of limitations, Vogel should begiven retroactive application because it was a casevindicating a constitutional right previously denied.To support this contention he relied on recentcases involving constitutional rights of criminal de-fendants that were made retroactive. Reviewingnumerous cases discussing the retroactive applica-tion of decisions, the appellate court concludedthat Vogel should not be applied retroactively. Thecourt said that it had not found any instance ofretroactivity where a First Amendment right wasinvolved. Also, the purpose of Vogel was not, asasserted by the professor, to protect free speechand to expunge a "judgment of disloyalty" againsthim but rather to protect future applicants forstate employment from having to condition theiremployment upon an oath. Additionally, othercases did not involve the statute of limitations.

On the conclusion that the 1953 decision ofthe state personnel board had long since becomefinal and that the present proceeding was barred bythe statute of limitations, the appellate court af-firmed the trial court decision dismissing the pro-fessor's claim.

NOTE: On December 30, 1971, the SupremeCourt of California reversed this decision. 491 P.2d1105.

Patterson v. Commissioner of Internal Revenue436 F.2d 359United States Court of Appeals, Ninth Circuit,January 12, 1971.

An elementary-school teacher deducted fromhis 1963 income tax return as ordinary and neces-sary business expenses amounts allegedly incurredin (a) doing research toward a doctoral degree ineducation and (b) equipping and operating a spe-cial room at his school to provide pupils with sup-plemental learning experiences. The deductionswere disallowed by the Commissioner of InternalRevenue, and the teacher was assessed a deficiency.The teacher appealed to the Tax Court which up-held thecommissioner and disallowed the deduc-tions on two grounds: that the expenditures werenot, as a matter of law, deductible; and that theteacher failed to substantiate the amount of theexpenditures. The teacher appealed further.

The appellate court held that in view of certainconcessions made by the Government on appeal,there was reason to believe that the Tax Court

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ruling that the expenditures were not deductiblemight be erroneous. Additionally, the teacherstated that he had the receipts to document hisexpenditures and that he had withheld them fromthe Tax Court on the mistaken belief that the com-missioner already had sufficient information whichthe commissioner should have produced in the TaxCourt.

In view of the circumstances, the appellatecourt remanded the case to the Tax Court for fur-ther consideration and suggested that the teacherbe permitted to produce acceptable evidence of theclaimed expenditures.

Florida

Board of Public Instruction of Dade County v.Dade County Classroom Teachers' Association243 So.2d 210District Court of Appeal of Florida, Third District,January 19, 1971; rehearing denied February 8,1971.

The Dade County board of public instructionappealed from a judgment making final a prelimi-nary injunction sought and obtained by the teach-ers association. The injunction barred the schoolboard from utilizing "the National Teachers' Ex-amination or graduate record examination or na-tional achievement tests, or other similar examina-tions or courses in lieu thereof, as a condition ofappointment, reappointment or salary purposes."

The school board had sought to administer theNational Teachers' Examination (NTE) to nonten-ure teachers and require a passing score as a condi-tion of reappointment. On appeal the board assert-ed that requiring the examination was a proper ex-ercise of its unquestioned power to establish mini-mum standards for the schools under its jurisdic-tion and its instructional personnel. On review ofthe pertinent state law, the appellate court foundthat from 1961 until 1967, a minimum score of500 on the NTE was a condition of receiving acertificate or advancing in certificate rank, but thatthis portion of the statute was deleted in 1967 byan amendment which recited that this requirementwas also eliminated for "continuing contracts."

The appellate court ruled that since state lawsets forth the requirements for the issuance of cer-tificates and continuing contracts (tenure) and itdoes not require the taking and passing of theNTE, the local board could not impose this re-quirement. Therefore, the portion of the injunc-tion barring the school board from requiring non-tenure teachers to take and pass the NTE would beaffirmed. However, since to obtain continuing con-

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tract status, a teacher must have been recommend-ed by the superintendent based on successful per-formance of duties and demonstration of profes-sional competence, the appellate court ruled thatthe language in the injunction barring the graduaterecord examinations, national achievement tests, orother similar examinations or courses was toobroad and was not at issue before the trial court.Accordingly, this portion of the injunction wasstricken.

Connell v. Higginbotham91 S.Ct. 1772Supreme Court of the United States,June 7, 1971.

(See Teacher's Day in Court: Review of 1970, p.72.)

A three-judge federal district court upheld partand struck down part of the Florida loyalty oathrequired of teachers and other state employees anddirected that salary be paid to a teacher who hadserved for a time without pay and who then hadbeen dismissed for failure to sign the oath. Theteacher then appealed to the Supreme Court of theUnited States.

The first section of the oath upheld by thedistrict court required the taker to pledge to sup-port the state and federal Constitutions. The Su-preme Court said that this requirement demandsno more of Florida public employees than is re-quired of all state and federal officers, and notedthat sections such as this in other oaths had beenpreviously upheld and that their validity was set-tled.

The second section upheld by the districtcourt required the taker to swear or affirm that "Ido not believe in the overthrow of the governmentof the United States or of the State of Florida byforce or violence." The Supreme court held thatthis portion fell "within the ambit of decisions ofthis Court proscribing summary dismissal frompublic employment without hearing or inquiry re-quired by due process." Therefore, this portion ofthe oath could not stand.

Louisiana

Adcock v. Red River Parish School Board250 So.2d 246Court of Appeal of Louisiana, Second Circuit,June 22, 1971.

A retired teacher sought payment of 21 daysof accrued sick leave at her rate of pay as of retire-

ment. The school board appealed from a courtjudgment in favor of the teacher.

The school board maintained that despite astatute requiring payment of unused sick leave, ithad no responsibility to pay the money to theteacher since the legislature had never appropriatedfunds. The law had been amended in 1966 to makethe payment of unused sick leave mandatory whereit had been discretionary. The amendment alsoraised the maximum number of days that could beaccumulated from 25 to 45 and provided statefunding for the additional 20 days.

The appellate court held that the statute clear-ly contemplated state funding for the additional 20days over and above the 25 days that could alreadybe accumulated, and did not affect or have anybearing on the mandatory obligation of a schoolboard to pay accrued sick leave up to 25 days upondeath or retirement of a teacher. Therefore, sincethe teacher was seeking payment for only 21 days'leave, the provisions relating to an appropriation offunds by the legislature had no bearing on theschool board's liability to the teacher. For thesereasons the judgment of the trial court in favor ofthe teacher was affirmed.

Michigan

Park v. Lansing School District189 N.W.2d 60Court of Appeals of Michigan, Division 2,April 23, 1971.

Nontenured administrative employees of theLansing school district were not rehired for failureto comply with a policy requiring them to residewithin the school district. The policy was appli-cable to all administrative employees except thosepersons who held administrative positions prior toJuly 1, 1962, and had continuously resided outsidethe district since that time. The employees hadsought to enjoin the enforcement of the regulation.The trial court dismissed their complaint and theyappealed.

The employees' first contention on appeal wasthat the policy denied them due process. The ap-pellate court did not agree, holding that on therecord the question of the beneficial effect of theresidency requirement was reasonably debatableand, therefore, substantive due process was not vio-lated. The next contention of the employees wasthat they were denied equal protection becausethere was no rational reason for the July 1, 1962,cut-off date. Since the trial court had not ruled onthe reasonableness of the justification for the cut-off date, the appellate court reversed the decision

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and remanded the case for findings of fact andconclusions of law on whether the cut-off datebears some reasonable relation to the intended pur-pose of the residence policy rule. If it did, theappellate court said, the rule would be valid.

New Hampshire

Donnelly v. City of Manchester274 A.2d 789Supreme Court of Ncw Hampshire, Hillsborough,February 2G, 1971.

A teacher who resided in Deny and taught inthe Manchester school system sought to have de-clared invalid a city ordinance which required allclassified employees of the city of Manchester, in-cluding teachers, to live in the city or become resi-dents within 12 months of their employment un-less granted a special permit.

In passing on the validity of the ordinance, thecourt said that the right of every citizen to livewhere he wants and to travel freely, not only with-in the state but across its borders, is a fundamentalright which is guaranteed by the state and federalconstitutions. There was no question in the mindof the court that the city ordinance placed a re-striction on this fundamental right. This being thecase, the ordinance could be upheld only if therequirement that employees live within the cityserved a public interest important cnought to justi-fy the restriction on the private right. The courtfound nothing in the record which would justifythe application of the restriction to school teach-ers, since their qualifications were certified by thestate and once certified were entitled to pursuetheir calling anywhere in the state, and their quali-fications to perform their important function didnot depend on their place of residence.

It had been argued that those who were em-ployed by the city should help support the cost oftheir government by contributing to the economyof the city, and its tax base. But, the court said,city employees earn their salaries and any govern-mental interest served by forcing them to be resi-dents for financial benefit is slight compared to theinterference with their private rights.

The court declared the ordinance invalid inthat it constituted an unconstitutional exercise ofgovernmental power.

Ncw Jersey

Visotcky v. City Council of the City of Garfield273 A.2d 597Superior Court of New Jersey, Appellate Division,February 3, 1971.

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The outgoing mayor of the city of Garfieldappointed a teacher to a vacancy on the board ofeducation. The teacher took office on December31, 1969. On January 5, 1970, the new mayorappointed' another person (plaintiff) to the samevacancy. The plaintiff took his oath of office thesame day. In this suit the appointment of theteacher was challenged as illegal under state lawbecause he. was a teacher in the same school systemin which he was appointed a school-board member.The trial court ruled that the positions were incom-patible, and the teacher appealed.

At the time of the appointment the teacherwas under contract for the 1969-70 school yearand in fact continued to teach and be paid untilthe end of the school year. Affirming the lowercourt decision that the teacher's appointment as aschool-board member was invalid from its incep-tion, the appellate court held that two positions ofteacher and school board member in the sameschool district were incompatible. The appellatecourt said that the teacher is an employee whereasthe board of education is the employer and thatthere are many potential conflicts of interest be-tween the two.

The teacher also argued that his acceptance ofthe board membership vacated his teaching posi-tion rather than prevented his appointment to theboard. To support this contention, the teacher re-lied on a New Jersey case holding that acceptanceof the second office vacates the first. The appellatecourt distinguished the cited case from the one be-fore it because here the teacher was bound by hiscontract for the school year and not legally free toabandon one public job for another. Additionally,the teacher kept his teaching position for the re-mainder of the term and continued to be paid.While he offered to resign as a teacher, the offerwas conditioned upon ani adverse determinationand was never effectively carried out.

New York

Community School Board 3 of the City of NewYork v. Board of Eduation of the City ofNew York326 N.Y.S.2d 130Supreme Court of New York, Special Term,New York County, Part I, November 17, 1971.

The community school board brought an ac-tion against the New York City board of educationto enjoin that board from making rules concerningthe "excessing" of personnel. Because of budgetarystringencies, it became necessary to reduce teacherand supervisory staff in various schools in the city,

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including those in District 3. There was no disputebetween the parties as to those teachers who hadattained tenure. However, the community boardwished to treat substitute teachers on a par withprobationary teachers and make the decision onwho would be released on "educational criteria"based on the judgment of the community boardand its superintendent on the teacher's usefulnessand needs of the school rather than on any previ-ously announced objective standard or order of pri-ority. On the other hand, the chancellor of the cityboard of education had issued guidelines requiringthat substitute teachers be laid off first and thenprobationary teachers in inverse order of seniorityand that seniority be determined on a city-widebasis.

Under state law, community school boardshave all of the powers and duties as the formerlocal school board, "not inconsistent with. ..thepolicies established by the city board." The courtfound that arguments could be made on both sidesfor the respective positions taken by the parties. Inlight of these circumstances, the court was of theopinion that the question should first be consider-ed within the educational system, by the statecommissioner of education, with or without theintermediate determination of the city board ofeducation. The court noted that the parties herewere public agencies, not private parties, and thatthe questions involved were those of law and statu-tory interpretation as well as of educational policyand administration on which the commissionercould make a better informed and more flexiblejudgment than the court. Accordingly, the courtdismissed the suit brought by the communityboard so that the matter could be pursued througheducational channels.

Henken v. New York State Teachers'Retirement Board316 N.Y.S.2d 564Supreme Court of New York, Appellate Division,Third Department, December 29, 1970.

The husband of a deceased teacher sought areview of the retirement board decision denyinghim disability benefits as his wife's designated ben-eficiary. The trial court denied relief and the hus-band appealed.

The teacher was forced to discontinue teachingbecause she was suffering from cancer. On June 25,1969, she applied for disability retirement benefitsnaming her husband as her beneficiary. The teacherdied on July 11, 1969, and pursuant to law theretirement board paid to the husband the teacher's

contributions to the retirement system and thedeath benefit. The retirement board refused to payto the husband additional benefits based on thealleged disability retirement because the teacherdied less than 30 days after filing her applicationand had selected no option plan for the paymentof the benefits, and because the board had notmade any ruling on her application.

The husband argued that the 30-day rule couldnot be adopted under state law. The appellatecourt rejected this contention, holding that therule was not unreasonable or in excess of the au-thority of the retirement board. Nor was the factthat the teacher was incapacitated by terminal can-cer equivalent to a finding by the board that shewas disabled. Accordingly, the court held that theteacher had never attained disability retirement sta-tus, and, therefore, her husband was properly de-nied the benefits.

The "judgment of the trial court in favor of theboard was affirmed.

State University of New York v. Denton316 N.Y.S.2d 297Supreme Court of New York, Appellate Division,Fourth Department, November 5, 1970.

Forty-five members of the faculty at the StateUniversity of New York at Buffalo appealed fromtheir conviction of criminal contempt of court forviolation of a preliminary injunction. The injunc-tion had been issued following a period of studentprotest to which these faculty members were not aparty, that necessitated the city police being calledonto the campus. The university had commencedthe action for the injunction against 13 named stu-dents, and John Doe, and Jane Doe. The issuedorder of March 5, 1970, enjoined the students"and all other persons receiving notice of this pre-liminary injunction, whether acting individually orin concert" from acting so as to disrupt or interferewith the normal operation of the university, fromblocking ingress or egress from properties, or fromemploying force or violence, or threatening thesame. The injunction was served by posting copiesat various locations on campus.

On March 15, 1970, ten days after the issuanceof the preliminary injunction, the 45 faculty mem-bers entered the office of the university presidentand refused to leave when asked to do so. It wasfor this action that they were found guilty of crim-inal contempt. These faculty members were notamong the defendants named in the injunction ac-tion, were not parties to the application for thetemporary injunction, and were never personallyserved with the order of March 5, 1970.

The major issue on appeal was whether thefaculty members were bound by the injunction,and accordingly whether they could be foundguilty for its violation. In answering these ques-tions in the negative, the court quoted from a land-mark New York decision wherein the highest NewYork court considered the statutory authority forthe issuance of such injuctions, and said: "In termsthe code authorizes an injunction against the de-fendant only, not the whole world .. .. Therefore,so far as the order purported to restrain all otherpersons having knowledge of the injuntion, thisprovision was inoperative to enlarge its effect. It istrue that persons not parties to the action may bebound by an injunction if they have knowledge ofit, provided they are servants or agents of the de-.fendants, or act in collusion or combination withthem . . . .Persons, however, who are not connectedin any way with the parties to the action, are notrestrained by the order of the court."

Measured by these criteria, the appellate courtheld in the instant case that the faculty memberswere not made subject to the preliminary injunc-tion by the language "all persons receiving noticeof this preliminary injunction." The court foundno basis on the facts presented for the conclusionthat the faculty members, who had no opportunityto be heard in the injunction proceedings werebound by it and accordingly subject to punishmentfor violation of the order. The injunction was spec-ifically aimed at student conduct, the court said,and there was no evidence that the students hadviolated the injunction. The court also found theevidence legally insufficient to establish that thefaculty members were either agents of or acted incollusion with the students. Consequently, even ifthe faculty did have knowledge of the provisions ofthe injunction, they could not be held in contemptfor their independent action in disobeying it.

The university offered proof that when thefaculty members entered the president's officethey handed a staff member a paper that statedthey intended to remain in the office until the po-lice were removed from the campus and that theywere in sympathy with the general purposes of thestudent strike. The university argued that this es-tablished that they acted in concert with the namedstudents. The appellate court disagreed, saying thatsympathy nn the part of the faculty was insuffi-cient to establish that the action was accomplishedin concert and/or collusion with the students.

Having concluded that the faculty memberswere not bound by the injunction, the court re-versed the judgment of the lower court holding thefaculty members in contempt of court for violationof the injunction and dismissed the case.

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Rhode Island

Providence Teachers Union, Local 958 v. SchoolCommittee of the City of Providence276 A.2d 762Supreme Court of Rhode Island,April 23, 1971.

(See page 109.) This case involved severance pay(based on accumulated unused sick leave) paid asretirement benefits.

Tennessee

City of Kingsport v. Lay459 S.W.2d 786Court of Appeals of Tennessee, Eastern Section,June 15, 1970; certiorari denied, Supreme Court ofTennessee, November 2, 1970.

In June 1969, the assistant superintendent ofeducation in Kingsport was elected to the positionof alderman of the city of Kingsport and sworn inat an annual salary of $250. Shortly thereafter,city officials sought a declaratory judgment as towhether the assistant superintendent could be paidthe salaries due him in both positions. The assistantsuperintendent denied any conflict between thetwo positions and asserted that he should be paidfor both. At the time of trial and appeal the assis-tant superintendent was serving in both capacitiesand was not being paid for either. The trial courtruled that under an applicable ordinance and statestatute he could not serve concurrently in the twopositions and that he could be paid only his salaryas alderman, not as superintendent. The superin-tendent appealed from this decision.

The city ordinance provided, among otherthings, that no alderman, officer, or employee ofthe city shall be connected with or have any inter-est, direct or indirect, in any contract with thecity. Further, the state statute provided that noperson holding office under any municipal corpora-tion could "be capable of contracting with suchcorporation for the performance of any workwhich is to be paid for out of the treasury."

The appellate court found conflicting dutiesand responsibilities in the two positions. As alder-man, the court said, the assistant superintendentwould be in the position of having to review bud-geted items that he had a part in formulating in hisadministrative position. Indirectly, if not directly,the superintendent had an interest in the amountapproved for salaries, the court said, and it wasonly natural that as alderman, he would favor theapproval of budgeted items relating to projects

1,7,5

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with which he was personally involved as assistantsuperintendent.

While agreeing with the trial court that the or-dinance and the statute were applicable and thatthe two positions were incompatible, the appellatecourt could not agree that the superintendent'scontract with the school board, made before hewas elected alderman, was abrogated by his subse-quent election as alderman. The rights of the par-ties, the appellate court said, are to be judged as ofthe date of the contract, and the board to which hewas elected could not modify the contract as toeither duties or compensation. The effect of theappellate court holding was that the assistant sup-erintendent could not be paid any sum as salaryunder any contract made with the board of educa-tion after the 1969-70 school year, but for thatyear he was entitled to both salaries.

Texas

Boyett v. City of College Station465 S.W.2d 203Court of Civil Appeals of Texas, Houston(1st Dist.), March 4, 1971; rehearing deniedApril 8, 1971.

An appeal was taken from the granting of adeclaratory judgment by the trial court in BrazosCounty. That court had held that employees ofTexas A. & M. University are eligible to hold non-salaried city council positions with the City of Col-lege Station and to receive their salaries from theUniversity while doing so.

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It 1.;:s uncontroverted that more than a monthprior to the filing of the Brazos County suit, asimilar suit had been filed in Travis County by tax-payers seeking a declaratory judgment as to whe-ther the state comptroller is prohibited by theTexas Constitution from paying persons servingconcurrently as members of the faculty or staff ofthe University and as members of the city' councilof the City of College Station. That case had beenset for trial but not heard as of the filing of thissuit. The appeal in this instance was brought by theplaintiffs in the Travis County suit asserting thatthe Brazos County trial court erred in overrulingtheir pleas of abatement.

The appellate court held that the Brazos Coun-ty court should not have ,overruled the pleas ofabatement in view of the pending Travis Countysuit. The appellate court found that the essentialquestion was the same in both suitswhether thestate constitution permitted the faculty membersto be paid their university salaries while holdingelective positions in the city government. Since theissue was essentially the same, the jurisdiction ofthe Travis County court attached when the firstsuit was filed there, and that court had the powerto permit the pleadings to be amplified, new par-ties to be added if necessary, and to determine allessential questions. While not all of the parties inboth suits were identical, the appellate court didnot consider this significant. Nor did that courtthink it of consequence that one suit was a classaction and the other was not.

The decision of the Brazos County trial courtwas reversed and the cause ordered abated.

INDEX TO CASES

Adcock v. Red River Parish SchoolBoard, 250 So.2d 246

Ahern v. Board of Education ofSchool District of Grand Island,327 F.Supp. 1391/ford v. Department of Education,91 Cal.Rptr. 843

Anonymous v. Board of Examiners ofthe Board of Education of theCity of New York, 318 N.Y.S.2d 163

Arkansas Education Association v.Board of Education of Portland,Arkansas School District,446 F.2d 763

Arndin v. Board of Education ofMiddlebuTh Central SchoolDistrict, 320 N.Y.S.2d 402

Armstead v. Starkville MunicipalSeparate School District,325 F.Supp. 560

Armstead v. Starkville MunicipalSeparate School District,331 F.Supp. 567

Auerbach v. Trustees of CaliforniaState Colleges, 330 F.Supp. 808

Bailey v. McDougall, 320 N.Y.S.2d 271

Baker v. Columbus MunicipalSeparate School District,329 F.Supp. 706

Beattie v. Roberts, 436 F.2d 747Beckwith v. Board of Public

Instruction of Dade County,247 So.2d 508

Black v. Blanchard, 179 S.E.2d 228Blodgett v. Board of Trustees,

Tanudpais Union High SchoolDistrict, 97 Cal.Rptr. 406

Board of Education of CentralSchool District No. 1, Town ofClarkstown v. Cracovia,321 N.Y.S.2d 496

Board of Education, Central SchoolDistrict No. 1 of the Town ofGrand Island, Erie County v.Grand Island Teachers' Association,324 N.Y.S.2d 717

127

Board of Education of Central122 School District No. 2, Town of

Oyster Bay v. Nyquist, 319 N.Y.S.2d 661 20

70 The Board of Education of Newark v.Newark Teachers Union, Local

12 No. 481, 276 A.2d 175 101Board of Education of the City

of New York v. Nyquist,322 N.Y.S.2d 370 13

13 Board of Education of Unified SchoolDistrict No. 1 v. WisconsinEmployment Relations Commission,191 N.W.2d 242 110

19 Board of Education of Union FreeSchool District NO.. 3 v.Nyquist, 317 N.Y.S.2d 212 21

119 Board of Education: of Union FreeSchool District No. 3 of theTown of Huntington v. Associated

86 Teachers of Huntington, 319N.Y.S.2d 469 104

Board of Education, Union Free87 School District No. 7 v. Deer

Park Teachers' Association,57 322 N.Y.S.2d 110 104

Board of Education, Union FreeSchool District No. 18 v.Boken, 316 N.Y.S.2d 286 21

43 Board of Higher Education of theCity of New York v.. StateDivision of Human Rights,

89 321 N.Y.S.2d 229 9637 Board of Public Instruction of

Dade County v. Dade CountyClassroom Teachers' Association,

33 243 So.2d 210 12112 Board of Public Instruction of

Dixie County v. Locke, 243So.2d 6 33

30 Board of Trustees of the ComptonJunior College District v.Stubblefield, 94 Cal.Rptr. 318 31

Boyett v. City of College Station,103 465 S.W.2d 203 126

Braxton v. Board of Public.Instruction of Duval County,Florida, 449 F.2d 158 85

Buffalo Teachers' Federation Inc.103 v. Helsby, 316 N.Y.S.2c1 125 105

127

128

Burns v. Board of School Commis-sioners of the City ofIndianapolis, Indiana, 437 F.2d1143

Callaway v. Kirkland, 320 F.Supp. 1135 .

Canty v. Board of Education of theCity of New York, 332 F.Supp. 1009 .

Carter v. Morehouse Parish SchoolBoard, 441 F.2d 380

Caso v. Katz, 324 N.Y.S.2d 712Chance v. Board of Examiners and

Board of Education of the Cityof New York, 330 F. Supp. 203

Chase v. Fall Mountain RegionalSchool District, 330 F.Supp. 388

Cirillo v. Board of Education ofthe City School District of theCity of Niagara Falls, 321N.Y.S.2d 952

City of Kingsport v. Lay, 459S.W.2d 786

City of Knoxville Board of Educationv. Markelonis, 460 S.W.2d 362

Coffee v. Board of Education ofthe City of New York, 319N.Y.S.2d 249

Cohen v. Chesterfield CountySchool Board, 326 F.Supp.1159

Colorado Civil Rights Commission v.State, School District No. 1,Bent County, 448 P.2d 83

Cooley v. Board of Education ofForrest City School District,Forrest City, Arkansas, 327F.Supp. 454

Community School Board 3 of theCity of New York v. Board ofEducation of the City of NewYork, 326 N.Y.S.2d 130

Connell v. Higgenbotham,91 S.Ct. 1772

Copley v. Board of Education ofHopkins County, 466S.W.2d 952

Corbin v. Special School Districtof Fort Smith, 465 S.W.2d 342

Cornist v. Richland Parish SchoolBoard, 448 F.2d 594

Council of Supervisory Associationsof the Public Schools of Nf-zuYork City v. Board of EducCionof the City of New York,318 N.Y.S.2d 220

Council of Supervisory Associationsof the Public Schools of New YorkCity v. Board of Education of the

85 City of New York, 324 N.Y.S.2d778 16

Cox v. Barnes, 469 S.W.2d 61 11761 Crabtree v. Board of Education,

Wellston City School District,74 270 N.E.2d 668 47

Cummins v. Board of Trustees of94 the Eanes Independent School

105 District, 468 S.W.2d 913 27

Derby v. University of Wisconsin,14 325 F.Supp. 163 79

Dodge v. Board of Education of71 the School District of the City

of Saginaw, 183 N.W.2d 793 39Donaldson v. Board of Education

of the City of North Wildwood,106 279 A.2d 112 73

Donnelly v. City of Manchester,125 274 A.2d 789 123

Downs v. Conway School District,48 328 F.Supp. 338 29

Draper v. School District No. 1,City and County of Denver,

113 486 P.2d 1048 32Drown v. Portsmouth School District,

435 F.2d 1182 73116 Duncan v. Koustenis, 271 A.2d 547 118

Dunham v. Crosby, 435 F.2d 1177 38

60 Endicott v. Van Patten, 330 F.Supp. 878.. 64Evans v. Polk County School Board,

249 So.2d 725 33Ewen v. Board of Education of Union

57 Free School District No. 18,323 N.Y.S.2d 789 106

Fitchburg Teachers Association v.123 School Committee of Fitchburg,

271 N.E.2d 646 20122 Fluker v. Alabama State Board of

Education, 441 F.2d 201 55Fooden v. Board of Governors of

117 State Colleges and Universities,268 N.E.2d 15 61

23 Ford v. Bay County Board of Education,253 So.2d 728 34

36 Ford v. Bay County School Board,246 So.2d 119 34

Fort Sumner Municipal School Board v.Parsons, 485 P.2d 366 41

Fucinari v. Dearborn Board of15 Education, 188 N.W.2d 229 67

George v. School District No. 8Rof Umatilla County, 490 P.2d1009

Glover v. Daniel, 318 F.Supp. 1070Goldin v. Board of Education of the

City of New York, 324 N.Y.S.2d823

Governing Board of Nicasio SchoolDistrict of Marin County v.Brennan, 95 Cal.Rptr. 712

Hampton School District No. 1 ofCalhoun County v. Phillips,470 S.W.2d 934

Hanover v. Northrup, 325 F.Supp.171

Hanover Township Federation ofTeachers v. Hanover CommunitySchool Corporation, 318 F.Supp.757

Hardway v. Board of Education ofLawrenceville Township high School,District No. 71, 274 N.E.2d 213

Hauppauge Classroom Teachers Associa-tion v. Millman, 317 N.Y.S.2d 461

Head v. Special School District No. 1,182 N.W.2d 887

Heine v. School District No. 271,481 P.2d 316

Henkin v. New York State Teachers'Retirement Board, 316 N.Y.S.2d5 64

Henock v. Bergtraum, 321 N.Y.S.2d 1 .

Henson v. City of St. Francis,322 F.Supp. 1034

Heumann v. Board of Education of theCity of New York, 320 F.Supp. 623

Hill v. Caddo Parish School Board,250 So..2d 446

Holliman v. Martin, 330 F.Supp. 1Hopkins v. Board of Education of the

City of Chicago, 330 F.Supp. 555Horton v. Lawrence County Board of

Education, 320 F.Supp. 790Horton v. Lawrence County Board of

Education, 449 F.2d 793

In re Jersey City EducationAssociation, 278 A.2d 206

In re Lakeland Federation of Teachers,Local 1760, 317 N.Y.S.2d 902

Jefferson County Teachers Associationv. Board of Education of JeffersonCounty, 463 S.W.2d 627

finks v. Mays, 332 F.Supp. 254

129

Johnson v. Board of PublicInstruction of Collier County,

26 Florida, 241 So.2d 445 6193 Johnson v. Fraley, 327 F.Supp. 471 78

Karin v. Board of Education of21 Central School District No. 1,

317 N.Y.S.2d 465 43Kaufman v. Pinta Junior College

58 Governing Board, 484 P.2d 244 56

La Fleur v. Cleveland Board ofEducation, 326 F.Supp. 1208 115

Lakeland Joint School District,Lackawanna County v. Gilvary,283 A.2d 500 47

Lawson v. Board of Education ofVestal Central School District

No. 1, 315 N.Y.S.2d 877 107

98Lee v. Macon County Board of

Education, 321 F.Supp. 1 83Legislative Conference of the City

University of New York v. Boardof Higher Education of the Cityof New York, 324 N.Y.S.2d 924 114

Lehman v. Dobbs Ferry Board ofEducation Union Free SchoolDistrict No. 3, 323 N.Y.S.2d 283 107

Lenning v. New Mexico State Boardof Education, 485 P.2d 364 42

Le Tarte v. Board of Education ofthe Lake Pleasant Central SchoolDistrict, 316 N.Y.S.2d 781 44

Lippold v. Board of Education of

79the City of New York, 324N.Y.S.2d 650 44

17Long v. Board of Education of the

City of St. Louis, 331 F.Supp.193 69

Lucas v. Board of Trustees of ArmijoJoint High School District,96 Cal.Rptr. 431 24

23

93

19

75

100

25

12416

6577

62McAlister v. New Mexico State Board

82 of Education, 487 P.2d 159 42McCoy v. McConnell, 461 S.W.2d 9 48 .. 49

82 McDonald v. Terrebonne ParishSchool Board, 253 So.2d 558 118

McDonough v. Kelly, 329 F.Supp. 144 . 40102 McGuffin v. Willow Community School

District, 182 N.W.2d 165 35107 MacKay v. Rafferty, 321 F.Supp.

1177 120Mahopac Teachers Association v.

Board of Education, Central School99 District No. 1, 323 N.Y.S.2d

112 997 108

130

Mailloux v. Kiley, 323 F.Supp.1 38 7

Mailloux v. Kiley, 448 F.2d 1242Maslinoff v. Central School District

No. 1, 323 N.Y.S.2d 1 005Mills v. Birmingham Board of

Education, 449 F.2d 902Mitchell v. Alma School District

No. 30, 332 F.Supp. 47 3Monahan v. Board of Trustees of

Elementary School District No. 9,County of Fremont, 486 P.2d235

Monroe v. Trustees of the CaliforniaState Colleges, 95 Cal.Rp tr.704

Montgomery v. White, 320 F.Supp. 303Moore v. Board of Education of

Chidester School District No. 59,Chidester, Arkansas, 448 F.2d 709

Morgan v. New Mexico State Board ofEducation, 488 P.2d 1210;cert. denied, 488 P.2d 12 09

Munro v. Elk Rapids Schools,189 N.W.2d 224

Nicolella v. School Board of theTrinity Area School District,Washington County, 281 A.2d832

North Salem Teachers Associationv. Board of Education, CentralSchool District No. 1,323 N.Y.S.2d 996

Orr v. Trinter, 444 F.2d 128

Pardue v. Livingston Parish SchoolBoard, 251 So.2d 833

Parents Association of PublicSchool 222K v. CommunitySchool Board of Local SchoolDistrict, 319 N.Y.S.2d 864

Park v. Lansing School District,189 N.W.2d 60

Patterson v. Commissioner ofInternal Revenue, 436 F.2d359

Pearson v. Independent SchoolDistrict No. 716, 188 N.W.2d776

Petition of Davenport,283 A.2d 452

Pierson v. De La Warr SchoolDistrict, 282 A.2d 656

Potts v. Gibson, 469 S.W.2d 130

Powell v. Board of Higher Educa-65 tion of the City of New Yorh,66 325 N.Y.S.2d 14 45

Providence Teachers Union, Local108 958 v. School Committee of the

City of Providence, 276 A.2d83 762 109

24 Rainey v. Jackson State College,435 F.2d 1031 95

Ramsey v. Hopkins, 320 F.Supp. 477 92Raids v. Baker County Georgia

54 Board of Education, 445 F.2d825 85

Reagan v. Board of Directors,120 Republic School District 309,97 480 P.2d 807 51

Ricciotti v. Warwick School Com-mittee, 319 F.Supp. 1006 96

84 Roberge v. Hoquiam School DistrictNo. 28, 490 P.2d 121 52

Roth v. Board of Regents of State74 Colleges, 446 F.2d 806 80

Roumani v. Leestamper,39 330 F.Supp. 1248 67

Rumph v. Wayne Community SchoolDistrict, 188 N.W.2d 71 40

77 St. Louis Teachers Associationv. Board of Education of theCity of St. Louis, 467S.W.2d 283 101

108 School Committee of New Bedfordv. Dlouhy, 271 N.E.2d 655 99

76 School District No. Fifty ofAdams County v. Milhous,490 P.2d 315 32

36 Schwartz v. North Salem Board ofEducation, 318 N.Y.S.2d 774 108

Shirck v. Thomas, 447 F.2d 1025 63Sife v. Board of Education of the

17 City of New York, 317 N.Y.S.2d557 45

122 Simcox v. Board of Education ofLockport Township High SchoolDistrict No. 205, Will County,

121 Illinois, 443 F.2d 40 64Siniapkin v. Nyyn ist, 325

N.Y.S. 2d 823 4568 Smith v. Board of Public Instruc-

tion of Pinellas County, Florida,50 438 F.2d 1209 35

Smith v. Concordia Parish School60 Board, 445 F.2d 285 86

149 State v. Lundquist, 278 A.2d 263 94

130

State ex rel. Farley v. Boardof School Directors of theCity of Milwaukee, 183 N.W.2d148

State ex rel. Gandy v. Board ofEducation, Continental LocalSchool District, 269 N.E.2d 605

State University of New York v.Denton, 316 N.Y.S.2d 297

Tischler v. Board of Education ofMonroe Woodbury Central SchoolDistrict No. 1, 323 N.Y.S.2d508

Toney v. Reagan, 326 F.Supp. 1093Trustees of the California StateColleges v. Local 1352, SanFrancisco State College Federa-tion of Teachers, 92 Cal.Rptr.134

Visotcky v. City Council of theCity of Garfield, 273 A.2d597

53United States v. Tunica CountySchool District, 323 F.Supp.

47 1019

124 Walsh v. Nyquist, 325 N.Y.S.2d103

Weckerly v. Mona Shores Board ofEducation, 184 N.W.2d 323

Weinbrown v. Board of Education75 of Union Free School District59 No. 15, 271 N.E.2d 549

Williams v. Longtown SchoolDistrict No. 71 of PerryCounty, 468 S.W.2d 673

Wilson v. Board of Education,98 Union Free School District

No. 23, Town of Oyster Bay,319 N.Y.S.2d 721Valachovic v. Nyquist, 325

N.Y.S.2d 199 114

131

123

90

46

68

46

26

109