*3 acquired chures were at the theatre. Overgaard, 111., Chicago, Mitchell J. articles, poems These contained various defendants-appellees. pictures. poem— One article —or Before ENOCH and O’SULLIVAN* “Getting Together” entitled contained Judges, Senior Circuit and FAIR- brought material charge which about dis- Judge. CHILD, Circuit plaintiffs. total con- of Its tent is set out in the brochure “Wood- Judge. O’SULLIVAN, Senior Circuit copy ap- stock” a of which is made an discharge appeal by This concerns the parts relating pendix hereto. Those : defendant Board of Education of three drugs, might sexual behavior and what public plaintiff-appel- school teachers — vulgarities be called are as follows: causing distributing lants —for to be place A “Woodstock like felt home. eighth grade pupils distributed to their place to take A to make acid. love. reading allegedly improper obscene and place Felt a little like a we'd been be- brought against materials. Action was yes- fore, remember, but hard to like appellees, Education, Board of its night’s terday’s vision, like last agents, members and the United now, But and it dream. now it’s all District for the Northern States Court turning like we’re back. never feels Illinois, District Eastern Division. (cid:127)X- -X- . * -X* 'X- plaintiffs action, For their cause of charged abridged that defendants’ action felt like swell of ener- Woodstock a rights by gy, their civil secured to them 42 wave elation that fills the heart rights 1983, and their under the lover beside § on over U-S.C. flows you. the First and Fourteenth Amendments. operated eighth grade fendant-appellees’ and Ronald E. Sievert were teachers of judgment. appeal. Jurisdiction of the Court was based District Court upon (4). The We affirm. Clara S. 28 U.S.C. by the Board of Education of litigation Brubaker, From such students §§ an order 1332 and motion for was concluded John order, plaintiffs public W. granting 1343(3) Brubaker summary schools de- ter. less. take me ing, I am ever Stink Woodstock was Grass smoked * [*] Oh forget joy -X [*] completely! overflowing, our what I have to that. -X- [*] shit; together. Don’t ever settle for -X- -X- freedom. Don’t Music of oh lover caress- -x- -X share, Laugh- [*] * oh County, Gathering together. District Cook Illinois.
* popularly Honorable Clifford O’Sullivan of the Acid and Grass are em Sixth words Circuit, sitting by designation. ployed identify marijuana, re LSD spectively. water, posters in touch- one of her naked into the the brochure’s
Bodies ing other, opening into hearts classroom. each being together greater awareness of Copies then of the brochure were living planet on the eighth grade made available stu- Ronald dents Brubaker’s and John something being part —a time, In classes. due these Sievert’s movement, motion, drop like way into the brochures found their moving tide, of the water in crest When of some students. homes fucking together big wave we’re ap- parents complained principal, to the !. pellee Condon, (especially about John Its [******] only the beginning. were asked poem “Getting Superintendent Together”), appellants James R. copies of Albert whether had made * * * * * *- *4 the brochure available to the students. crumbling, Old world new world be- appellants so, He was told had done ing born.” findings reported and to the Albert his (Emphasis supplied.) appellee at Board of Education members 30, April a closed on The session 1970. message eighth As a to the minds of day next to dismiss the Board resolved graders, poetry the brochure’s can and appellants May 4, of Each as probably fairly must be as an read allur- advising teacher a letter of the ing received beckoning invitation and a for them following adoption of Reso- Board’s discipline to imposed throw off the dull lution : by on them the moral environment of Hfe, exchange their home and in to enter “Resolve be name] dis- [teacher’s
*6 into a new world of love and freedom— missed as a teacher of the ef- District grass, freedom to use acid and circulating freedom May 4, fective 1970 for to early get take their and clothes off to an within cer- the schools the District vulgarities in start the use of promotional such tain entitled material “shit,” “fucking,” as compan- and their which is of an “Woodstock” material ions. suggestive nature, pro- obscene and viewpoint contrary motes a to the re- probably It is by a fair inference that quirements of the laws of the State year second high or third school most regard teaching to about the harmful American males have become familiar effects of alcoholic drinks and narcot- with, employ, and at times these and like ics, contrary and was distributed to only words. hope, it Is a forlorn how- provisions policy 3547 ever, young that most of our ladies will By-Laws Policies and Dis- School employ never speech that kind of ? 149, Illinois, County, pro- trict hibiting Cook Brubaker, taught Clara the distribution within who French at primary grade any property schools, various schools or on school placed pur- some of these material other chased, than material brochures in the teachers’ lounges gave procurred copies and also or furnished [sic] to her hus- band, ap- Brubaker, under proval John the initiative and with and Ronald Sievert, allegedly Board of for Education use their class- es. for any She did not District use herself distribution distribute Program.2 students, display brochures its Educational did but property, any Policy 2. The school board’s on reads: school or at district 3547 sponsored any kind, operation “No material of or whether or function. bearing imprint any by any profit kind, supplied making “No material of of a or- ganization, organization may non-profit may distributed be distributed be such or- ganization, any agent agent thereof, any organization, any or there- such or or of, employee, any employee, public district district until the Su- to students of the perintendent district, school, approved school such of this of Schools has within the May 28, 1970, On the School that the sec- District “Be It Further Resolved attorney replied retary that the Board had con- authorized of the Board be request plaintiffs’ prepare sidered but declined a letter directed grant hearing. further such a No ac- notifying of this him her] teacher [or taken, tion was made to the Superintendent nor address be action and that the year, Board for about a and then School directed to deliver said authorized and 22, April 1971, person on this lawsuit was as soon letter to the teacher in started. District Court decision of as convenient.” Regents, F.Supp. Roth v. Board of discharge, Before the efféctive date of (W.D.Wise.1970), referred to in attorney contacted the School Dis- plaintiffs’ May counsel for letter of setting asking trict, “the of a hear- pending appeal then on this ing charges regard pur- date with to the Court. they [plaintiffs] suant were which complaint, appellants charged In their request dismissed.” This was reiterated abridged appellees had their First May 15, 1970, in a letter of from a staff and Fourteenth Amendment freedoms attorney for the American Liber- Civil rights and their civil and in addition at- ties Union to the School District’s had breached their contracts and de- torney. The letter concluded: Appellants sought famed them. instatement, together each re- hereby “I also demand a written bill with an award of particulars, salary compensatory list of puni- witnesses who back *5 may may testify damages or not be called to on tive for willful defamation in board, copies $200,000 behalf of the school the amount of each. An award any attorney sought.3 of written statements heretofore of fees was also writing made such in or witnesses complaint The set out that Clara Bru- orally made and committed to writ- placed baker had a number of the bro- ing.” lounges in chures the teachers’ four at letter, plaintiffs’ attorney In this taught also French, or five where schools she gave observed: copies plaintiffs a number of to Sievert, Brubaker and K. John Ronald case, “There is a recent Roth v. Board “display poster the contained [ed] Regents, decided on March therein the in her [in brochure] class- in the federal for court district the allegation room.” made no the She that Wisconsin, which, Western District of any brochure or its were contents told, procedural I am summarizes way teaching. to relevant what she was requirements for dismissal of non-ten- alleged plaintiffs It was further that university professors ured at state in- Brubaker and Ronald K. John Sievert However, stitutions. I have not had placed had the brochures on their desks yet opin- time as to track down that to be available to their students. course, position ion. Of it our is that procedural Appellants process the same due claim that the brochure taught apply relevancy being standards public had to teachers to what was system eighth grade Appellant school in to the as to teachers students. public university system.” relevancy Sievert said it had to his Superintendent’s distribution. The conclusion of their brief to this Court deci- judgment sion shall be based on his asks that: educational “the court [be] interests served in each indi- case remanded to the district entry plain- report- judgment vidual case. Such decision will be for of a favor of respect ed their to Board of Education as informa- tiffs with to the violation of agenda.” rights granting tional items in its constitutional and for the Appellants respect defa- trial with to their claim of Brubaker and Sievert testified they policy. that were mation not aware of such of character.” prove The Board was unable the con- trary. teaching thing assignment Language Arts— think that this whole contributed — guidance my class was to the interest of in- because under his his class musical history studying of rock music. We struments.” He that added such would poetry saying also, be true of rock music has are not advised what that as Language Arts, appellant poem, to the words of the do but “there was with * * * nothing wrong with them testified: Sievert they part regular were vocabu- begin that “We were to a new unit lary youngsters age.” of this Nei- day, just but since we had finished explained ther Brubaker not Sievert the other unit on the evolution of mu- any relevancy their students claimed opened sic I took out a brochure and I the Woodstock brochure. showing said, up it and instead of it I might appellees In due course made a T have a brochure here which Motion Complaint, you averring to Dismiss the because it seems that be of interest plaintiffs right pertain specifically just had no constitutional to what we hearing concerning studied.’ reasons discharge; plaintiffs their that had ad- very said, “And I ‘It has colorful mitted the misconduct which had well, poster you in it as which I think brought discharge; on their fur- may in,’ well be so I interested eighth nishing grade students brochures up poster got part held ooh’s containing language set out above and ahh’s from the class.” activity protected was not an period, ter, class pressed, “So most “Nobody said [******] [******] and after period.” when I I took think, by could have one after any them were rather showing said, until the colorful this to them after ‘Okay. the class Now ileged. pos- im- I plaintiffs was not a breach of admitted teaching contracts, further exercise of civil alleged defamatory classes First or Fourteenth Amendments material was without legedly defamatory taught by plaintiffs. Appellees contended by plaintiffs, rights; statements were language had been relevancy and that the truth of the and that such dismissal to the priv- their al- you up get poster,’ can come and by This motion was denied District they just literally where rushed to the Judge by Hubert L. Will order entered grabbing just cabinet and file were September 16,1971, as follows: get crazy, trying many like as as they could.” “Order defendants’ motion to dismiss complaint is denied. Order de- He testified that was not brochure complaint fendants answer within given authorities; by to him the school days.” 10 quick- also that examination of it would ly disclose its material had been Following appellees’ answer, ordered prepared for classroom use. plaintiffs 22, 1971, on November moved summary judgment for a as to its claims poem “Getting He said that to the as of “Violation of 1st and 14th Amend- Together” young people he felt that (Count ments” complaint) I of their and quite could handle it well —“I fear- was Agree- Employment “Violations of the ing parents mainly the reaction of (Count II). 21, ments” On December administrators.” 1971, Judge Bauer, District William J. Appellant teaching John Brubaker’s transferred, to whom the case had been assignment solely upon authority was “Industrial Arts.” of this Court’s relevancy Regents, decision in As to the of the Woodstock Roth v. Board of (7th (Reversed subject, 1971) 446 brochure to that he said: “I F.2d 806 Cir.
979 having rating by Supreme R tized as its dis- thereafter 1972 rating Court, Regents Roth, provided 408 U. tributors which persons Board of v. 2701, 548), years age 564, under were L.Ed.2d 17 S. S.Ct. accompanied provide appellants not to be admitted unless by ordered the Board to guardian.” parent hearing a of the or adult with a and a statement discharges. reasons for their Reasons 6 to 10were as follows: hearings held in The ordered were language poem of the “6. That early appellants were 1972 at which Getting Together contained in said represented Prior such counsel. promoted viewpoint brochure trary con- hearings plaintiff provided each was requirements to the of the laws for dis- with a statement of the reasons regard of the State of Illinois given The one missal. John Brubaker teaching about the harmful effects of following: included the alcoholic drinks and narcotics as con- Ill.Rev.Stat.1969, 122, tained in ch. § 20, April That on or “1. about 27-10. Brubaker, employed John while as an industrial arts teacher School Dis- language poem “7. That the Getting Together in the trict made available students contradictory entitled ‘No district brochure generally and counteractant to the ac- one there ever be the who was will objective cepted discouraging knowledge same’ with the and inten- drugs hallucinogens use of other tion re- that students would take and by young persons. copies tain of the for their brochure language poem “8. That the reading of the personal inspection. Getting Together contained in the among “2. That the written material brochure what are violates called the contained within said Woodstock bro- proprieties or the standards what poem ‘Getting chure was a entitled To- socially acceptable conduct, is be- gether’ containing language an ob- speech, especially havior and as be- suggestive pro- scene and nature and elementary age tween adult and school moting favorably por- or otherwise children. traying drugs use and other making poem Getting hallucinogens.” “9. That Together part as brochure Reasons 4 and 5 stated that the dis- elementary age available to school approved tributed brochure had not been children without comment or criticism pre- distribution and had not been legitimate objec- served no educational pared instruction; *7 as a tool for school language tive and that the the of appellants knew, or should have poem generally is not consistent with known, brochure, the contents of the and approved professionally acceptable and knew, that Brubaker or should have generally classroom material or ac- known, that: cepted prac- educational and standards patent purpose of “[T]he the bro- tices. publicize pic- chure towas motion a language subject and “10. That the ture about and recorded music from Getting Together poem matter of the 1969 rock music festival known as contained in had no rele- the brochure the Woodstock Festival which festi- any way vance or in to the related widely reported newspapers val was study of courses which John Brubaker and on television and criticized for the assigned present was nor which he purported promiscuity sexual and fact, giving.” was, in drug participants, use of its also promoted by Those furnished Clara Brubaker and since the film said bro- assigned chure had been and adver- Ronald were of similar sub- Sievert stance; assigned get reasons were sub- value. He does some shock value given stantially originally appel- literary contrast, those out of the my money, but for great of their dismissals. it lants with notice shows a awareness literary tradition, great sensi- of public hearings, testi- At the relevant tivity language, development to the by plaintiffs mony presented English poetry.” of and American produced two emi- the Board. Plaintiffs (Emphasis supplied.) nently expressed the men who educated “Getting Together” poem and: view that the given proper to be was eighth material criticism, “You want a and I think grade Both had re- students. myself caressing’ that ‘Oh lover is a important American ceived Ph.D’s from sentimental, get little you bit but then universities, had studied and were caressing’ from ‘Oh lover down to the currently in the field of educa- active water,’ ‘Bodies naked into the where tion. plays sentimentality he the romantic against expert well, the realism of ‘Bod- of attention these witness- the— ies naked into the water’ knowledge poem’s is an actual was called to the reference to es other, opening each apparent joys smoking grass— of greater hearts into marijuana awareness.” its invitation to Wood- —and (Emphasis supplied.) place stock as “a to take acid”—LSD— transports and to make love. and ecstacies They suggested by: knew of the *X* [*] *X* n X- -X- -X* gentleness “I pose think the of this joy overflowing, “Oh lover caress- Oh lovemaking very would be also of * * * ing completely me Oh take great might educational value. It well * * * together. Grass smoked impression have a considerable on shit; laughter. Stink our music of them.” * ** water, Bodies naked into the touching other, opening each This same hearts witness also considered the * * * greater furnishing poem into eighth awareness. Of grade being part something movement, children and stated that he —a * * * thought together teaching moving motion methods of Bru- Sievert, big fucking employed (Empha- baker and we’re wave.” their In- Language supplied.) dustrial Arts and sis Arts classes expanded “are admirable.” He this containing Of the total work compliment by observing: above, one of such witnesses made they following “It seems to me that quite establish comments: clearly good had a deal apparent “For all its looseness as sensitivity with the children and Whitman, very quality, it has it’s precisely' knew what children are in- tightly constructed, it seems terested in.” poem.” too bad a poem He said of words used Further: that, *8 good “I think there’s a deal of artistic perhaps “there better words than are imagination integrity in and that suggested, seem to have but I been poem.” that, you know, way, these a think (Emphasis are sort and, again, of beautiful.” supplied.) very hard, “It would think to be I suggest the of any distribution asked whether for When that of it is there fit the gross Woodstock would the brochure for crude shock value, shock teaching said, opinion teacher” and “preponderant” the it “demeans the of would, answered, kind profession, “it is the he public circulation of material that is * * * teaching “rigidify it the therefore, part of is, of the material simply least difficult make it at would thought that also He the classroom.” bring impossible the forth if not to providing the students such material to imaginative improvisation kind of help develop “rapport with to a would * * * important especially is that * * * in- all as this these students learning subject like area in a a general fluidity and realism creases the English.” the classrooms.” of Questioned poem’s the as to whether experts expressed him- One of also using drugs suggestion joys of of self as follows: to offend school’s obedience would teaching requiring the is the vision of the Illinois statute real “[T]his narcotics, thing, a of use of whole notion of the effects Woodstock of I, experts disposed community of the sub- new sense for which one of having deplore ject lost.” follows: one, can as as supplied.) (Emphasis Referring “Q. to reference to the This witness also testified as follows: you drugs poem, this do think in that * * * glorify to poem would tend “Q. get feeling, Doctor, kind I of that use? you saying that what are that life is part, may in really I it that think is different from we “A. what be true.” latter would adults and it to educators would like really be and that we at- had better he de- to what reference some And after program tune our to educational what society,” “drug our .addicted as scribed against really it is like as what we concluded: the witness prefer it to be. “ * * * exposure so this additional If we are to the children “A. serve joyful drug experience use [its of anxieties, yes, instead of our own of it I conceive can’t Woodstock] at again all means.” being trivial anything but as drug use.” plaintiffs’ plus the side of experts on disclosed Both of having with to do current activities gave emphasis the above later He training today’s minds children. referring poem’s invitation was, One said he being “exceedingly drugs trivial.” as “Engaged activity hy- experts plaintiffs’ found One of training schooling and service contem- pocrisy in the contrast between watching teachers, degree them to a professed mo- society’s porary notions work children.” with that soci- rality the total conduct said, ety. He The other referred to his research Health the National Institute of Child my it is con- scientist as a social “but Development. Human Thus the society opinion in the sidered quoted excerpts portray atti- above society is in- conduct of form and the teachers tudes and beliefs of some of society.” a sick deed today’s It the teachers of children. then, ponder, a vaccine or opinion whether teachers should was their We eighth grad- given get therapy required approval from to our be not be distributing hypocrisy this sickness—the ers school authorities before .for may exposure found brochure their be material as the such Woodstock seniors— requirement, and its invitations. to Woodstock their students. Such *9 hearing, appellants solution step the Their first Brubaker with Board. At the lawyer they employment the had not read was said and Sievert hearing. they plenary “Getting Together” poem demanded a This before who year almost a thereaf- to their students. lawsuit followed it available first made rep- by testimony ter. their ambivalence as to the Board’s Whatever There was they resentative, however, these whether did at most that when what was they by him, approached or done after delibera- innocent mistake teachers were Rather, tion, rely sole- their lawsuit insists and relies on such excuse. did not they ly upon position did— that that what indicated Brubaker and Sievert something providing, apparent approval, poem with their in the was what was poetry At the but an exer- handle.” Woodstock the students “could that —was guaranteed hearing they reiterated such cise of the academic freedom the ordered by them the Constitution. United States a view. testimony appel- hearing, Board, by After the the Relevant to the reso- adopted April 8, 1972, that lution and ratified Brubaker Sievert lants poetry quoted plain- when and the confirmed the dismissal of had not read they gave classes, tiff-appellants. be it should it to their resolution stated part: interval of emphasized that a substantial was director perience gifted tendent of Public the press to their students time reading interval to make an distribution, Neither State A member of the staff poem. action elapsed of Illinois testified children. he was it, them, between of the state the and qualified however, employed By Board’s reaction defendant explanation or to ex- Instruction their their education and of the disapproval of claimed program for termination. Board. express support Superin- for the to its tardy this his ex- He has been sustained the Board teachers served X Plaintiffs and defendants thereafter sel of the and has heard the behalf of the and on behalf of the has heard the evidence 14, “WHEREAS, the Board of Education [*] X X » reasons for -X by service on * * * [*] School upon arguments [*] by them on teachers, dismissal finds Administration their presented [*] that each evidence; attorneys January of coun- of the X by on that brochure filed ry judgment, for
view Woodstock renewed cross-motions summa- August poetry value had no educational and on its inappropriate Judge for distribution District William Bauer denied grammar granted in- plaintiffs’ He found school children. motion defend- appellants deciding legality that valid the offered excuse In ants’ motion. poem plaintiffs’ discharge, had read the “Get- brochure’s the Court felt that distributing ting Together” it. question before it “have the before was: discharged of children plaintiffs We this view. share Parents herein for a been brought- wholly unsupported Woodstock bro- who had in fact or basis support wholly chure home also testified It without reason?” basis appear by expression the Board’s action. that this would Judge employing the District language Bauer was right think it also to observe We Judge the District used learning upon reaction of the Board’s Regents, of Roth v. Board of case plain- happened, none of the what had Upon F.Supp. a review of at 979. any regret expressed over the mat- tiffs Board, proceedings before ter; any seek re- did of them neither concluded: Court correc- instatement assurance They opinion tive measures would be taken. “It is this Court’s friendly is a basis distribution of the brochure made effort to come to a no *10 discharge ruling wholly not with- .the court’s that is district earlier for that plaintiffs procedural a contains had been denied out reason. The brochure ‘Getting Together’ process due poem in that had not been entitled given hearing prior profane fa- and notice and a contains words which drugs; discharge. this their references vorable say all reasonable cannot that Court dismissing summarily plain- “3. In poem this was find that men would relating tiffs’ claim to defamation of reading for material elemen- suitable character, gen- when said claim raised tary school children. uine as to issues material fact which incapable “Accordingly, Court holds that were of this resolution on a mo- discharge summary judgment.” a for tion there was basis for plaintiffs wholly not wholly un- which was
supported in
fact
without
I. First Amendment
and Civil
reason.”
Rights.
background
We have set out the factual
part
That
of the District Court
length
of this
at the
case
above
because
reads,
order
“this Court cannot
which
exposes
we believe that such recitation
say
all
men
that
reasonable
find
would
our
correctness of
affirmance of
reading
poem
this
that
was suitable
ma
holding
District Court’s
that the School
elementary
children,”
for
terial
school
is
arbitrary
Board’s
action was
or ca-
controlling
to us
unknown
as a rule
pricious,
and was not an
invasion
disposition
District Court’s
of the mat
appellants’
rights. Appel-
constitutional
however,
consider,
ter. We
that
or
his
making
lants assert
that
available
language
finding
der’s total
constituted a
eighth grade
their
students
Wood-
adequate
judgment.
the final
sustain
“Getting Togeth-
poem
stock brochure’s
speech
Issues
Presented
er”
guaranteed
was an exercise
the free
Review,4
appellants’ brief,
as set
by
out in
them
Amend-
the First
are:
ment
exercise
Civil
and an
of their
Rights, protection
vouch-
of which is
erred,
That the District Court
by 42
1983.
safed to them
U.S.C. §
They
invaded
that their
failing
said
dismissal
plaintiffs’
In
“1.
to find that
Freedom,
Right
their
of Academic
rights, including partic-
constitutional
ularly
they suggest that what
done would
was
rights
their academic freedom
“chilling
exercise
effect” on the
have
protected by
Amendment,
as
the First
by
freedom other teachers.
academic
infringed by
were
defendants’ action
dismissing plaintiffs
in
from their
that
much
not believe
however
We do
employment as teachers.
has
First Amendment
the reach of the
today’s
eager
and however
been extended
failing
plaintiffs
“2.
In
to award
many
protect
va-
been to
courts have
pay
attorneys’
back
fees based on
given
may
Appellees present
It
that
a narrow con-
preliminary
procedural
well be
4.
question
ju-
appeal
asserting
3(c),
no
that
struction
Rule
we would have
Clara
appeal. This
Brubaker
is
us. The
not before
notice of
risdiction to entertain Clara’s
appeal
Brubaker,
adopted by
in
lists Clara
view
the Ninth Circuit
John W.
was
¡Sievert
Newland,
(9th
Brubaker
in-
Cir.
Ronald K.
their
Penwell v.
1950).
985 reasonably year dom to conduct which can the school 1970-1971. As noted previously, appellants be deemed both offensive and unneces all were non-tenur- sary accomplishment to the of educa ed had been ad- teachers: Brubakers objectives. Lederle, May 4, 1970, they tional Close v. vised before Cf. Cir., 1970, 988, following 424 F.2d cert. de employed would be for the nied, 903, 141, year. Sievert, 27 L. however, U.S. S.Ct. had been ad- Here, particularly, Ed.2d 140. such May vised before *12 degree questions are matters of in year. Appellants’ po- the 1970-71 school volving judgment as notwithstanding they on such factors sition is that that age sophistication students, given had been reasons for their ter- purpose, relevance the educational mination, they to, were also entitled but presenta and context and manner initially argue refused, hearing. They (Emphasis tion.’’ 436 F.2d at supplied.) hearing 566. that the court-ordered did not
provide process. them with due affirming In the District on by appellants Court order support Cases cited remand, the First Circuit also said pay their claims for an award of back Kiley, supra, v. Mailloux distinguishable present are from the Orange County case. Horton v. Bd. of respect “With all to the district Educ., 536, (4th 464 F.2d 538 Cir. court’s sensitive effort to devise 1972); County Educ., Rolfe v. Bd. of guidelines weighing for those circum- 77, (6th 1968); 391 F.2d 81 Cir. Jack-
stances,
F.Supp. 1387,
suspect
323
we
Wheatley
son
v.
Dist. No.
464
School
any
that
such formulation would in-
(8th
1972);
F.2d 411
Cir.
Bates v.
problems
troduce more
than it would
(N.D.Tex.
Hinds,
F.Supp. 528,
334
533
present
resolve. At
we see no substi-
1971); Callaway
Kirkland,
v.
334 F.
case-by-case
tute
inquiry
for a
into Supp. 1034,
(N.D.Ga.1971).
In so
legitimate
whether the
interests of the
distinguishing,
emphasize
we
that
demonstrably
authorities are
suffi-
given
appel-
notices of termination
cient
circumscribe
teacher’s
lants each set out the
therefor.
reasons
speech.”
with.
advising
“In none of the letters
her
discharged
of the termi-
[the
teacher]
grounds
nation
she told of the
was
Pay
Attorney
II. Back
Fees.
therefor.”
987
appellants
pending before this
and their
that time there was
reasons therefor
appeal
appellants.
from a District Court were made
an
known
In the
Court
college
holding
Roth,
other case
two non-tenured
cited
Cafeteria &
hearing
Union,
professors
entitled to a
be- Restaurant Workers
were
Local 473 v.
reemployment McElroy,
886,
1743,
fore
were refused
367 U.S.
81 S.Ct.
6
year.
(1961),
of this
L.Ed.2d
for another
The decision
1230
the Court stated
holding
following:
affirming
was an-
Court
such
1,
July
1971,
suit was
nounced
after this
“The Fifth Amendment does not re
Regents
started,
Roth v. Board of
quire
trial-type hearing
every
(7th
Colleges,
ed. We decline to
hold.
so
Amendment to the United States Consti-
position
tution.”
It
his
that his
was.
finally
question
We come
discharge prior
hearing
him
denied
appel
of whether the termination of the
“procedural'due process of law.”
prior hearing
lants without a
denied
three-judge
Court,
A
District
con
process
them due
of law. Since this
pursuant
vened
to 28
2282
U.S.C.
§§
Court,
case was heard in the District
discharge procedures
held that the
ap
and thereafter submitted to us on
by
authorized
the Act and attendant
peal,
Supreme
opinion
in Ar
Court
Regulations
Civil Service and OEO
de
134, 94 S.Ct.
Kennedy, 416 U.S.
nett v.
appellee
process
By
nied
due
of law.
(1974),
40 L.Ed.2d
has come
summary
appellee
order it directed that
majority
its
down. We consider
position
be reinstated in
former
his
with
opinion
question of
sets at
rest
pay,
back
and that he
be accorded
whether,
cause,
no
matter what the
hearing prior
any
to removal in
future
hearing must as a matter
obedience
proceedings.
removal
The District
precede
Constitution,
to the
the termina
reported
decision,
Kennedy
Court
Sanchez,
as
v.
any public employee.
tion of a teacher or
F.Supp.
(N.D.Ill.1972),
that,
holding
opinion
We read the
as
sets out the claim which it sustained and
prior hearing
such a
not in all cases
is
dispositive ruling
its
as follows:
constitutionally
There, a civil
essential.
employee
service
terminated
con
by
procedure
Kennedy’s
which
“[T]he
formity
Congress
with an Act of
U.—5
employment
deprives
was terminated
which,
setting out
S.C.
after
§ 7501—
(which
him and his class
has not been
procedures
precede
certain
had to
determined)
process
of due
under the
employee,
termination of a civil service
Fifth Amendment
its failure to
concluded:
provide
evidentiary hearing
a full
prior
termination,
right
with the
witnesses, trial,
“Examination
impartial hearing
heard
be
offi-
hearing
may
required
but
be
is
;
right
witnesses;
present
cer
provided in
the indi-
the discretion of
*15
right
the
to confront and cross-exam-
directing
vidual
the removal or sus-
witnesses;
right
ine adverse
and the
pension
pay.”
without
indicating
to a written
the
decision
required
The
notice of
the
Act
discharge
suspension
reasons for
charges upon which termination was
upon.
and the evidence relied
This
provided
appeal
made
for an
and also
agrees.”
F.Supp.
Court
349
at 864.
that
be
the termina-
could
taken after
it,
majority
As we read
the
validity
discharge.
tion to
the
of the
.test
opinion
Supreme
Court in revers
departmental
Without
resort
such
ing
plena
the District Court held that a
employee began
procedures, the involved
ry hearing before a
not a
termination is
an action in the
District
United States
process.
constitutional essential of due
attacking
discharge
his
and as-
Court
dealing
specifically
There the Court was
Kennedy,
serting,
in Arnett v.
as set out
Congress
with a relevant Act of
wherein
supra,
terminating
provided
it was
that
a
charges
“that
the
were
be-
unlawful
employee
civil service
it was not re
right
trial-type
cause he had a
to a
hearing
quired
prior
that a
must be had
hearing
hearing
impartial
before
discharge.
The thrust of the Court’s
officer
he could be removed holding
gleaned
before
can best be
from its
**
employment
from his
as to the
statement
issue involved. The
(Emphasis supplied.)
at
S.Ct.
Court said:
statements
He further asserted that
“We must first decide whether these
by
procedures
[by
him
his termina-
made
which caused
the
established
Con-
determining
gress]
purpose
In all
of
termination of a school teacher.
for the
events,
Kennedy
rest
under the
the
decision
at
‘cause’
sets
there is
whether
appellants’
Lloyd-LaFollette
the
and
that
for
dismissal
denies
contention
Act
hearing
comport
prior
employee
with
absent
the
a
board
of a federal
school
wages
process,
pay
appellants.
procedural
then de- must
back
the
due
appellants
plenary
of
The
now
a
‘cause’
have
had
whether that standard
cide
hearing,
employee
was
of
dismissals
the disclosures which sustain
for federal
power
validity
of the school board’s action.
within
constitutional
of
hearing
initially
adopt.”
Congress
The
at 1641.
fact
that a
was
S.Ct.
only
(Emphasis supplied.)
refused and was had
ordered
when
by
impair
the District Court
does
controlling opinion
that
concluded
Its
rightness
originally
of what was
comport
procedures did
with
such
ap-
repeat
done.
pellants’
that at the time of
We
they
process
were
due
that
within
no clear
termination there was
power
Congress to
the constitutional
rule
law or constitutional command
adopt.
opinion
from which we
hearing
required.
that a
It is rele-
was
by
quote
Mr.
above was written
Justice
appellants
vant
for near-
too that
waited
by
Rehnquist,
concurrence
with
invoking
ly
year
help.
judicial
a
before
A
Justice Stewart.
Chief Justice Mr.
appellants
At no time have
denied
by
separate opinion
written Mr. Jus-
was
doing
prompted
of that which
the school
Mr.
concurrence of
tice Powell with the
is, and
board’s
was,
Their defense
action.
opin-
Blackman. Justice
Justice
Powell’s
right
they had the
to do what
that
pro-
emphasized
post-termination
ion
they
that
be mentioned
did.
It should
provided
in the relevant Act
cedures
hearing
nei-
their initial demand
Congress.
began
It
with
observa-
factual
ther denied the
recitals
alia, that,
tion, inter
termination,
upon
nor
notice of
relied
ultimately made
what
claim
that
agree
discharge
appellee’s
“I also
merely
did
academic
an exercise of
Fifth
did not contravene the
Amend-
freedom.
guarantee
procedural due
ment
process.” 94
at 1649.
S.Ct.
hearing
Evidence at
dis
complaints
parents
and concluded
that:
closed
appellants’
inves
activated the
students
balance,
“On
I would conclude that
tigation
action.
which led to
board’s
prior evidentiary hearing is not re-
right
It was
for school authorities
quired
present
and statute
cognizance
parental
such
con
take
regulations comport
with due
did not act without
cern. The board
providing appellants
process
providing a reasonable ac-
opportunity
with
competing inter-
commodation of the
*16
explain
justification for what
or offer
(Emphasis
94
ests.”
at 1653.
S.Ct.
neither,
Appellants did
had done.
supplied.)
response
employ a
and their
was to
first
lawyer.
ap-
are aware that Justice Powell
We
pears
by
part
in
to have
motivated
been
Upon
of
consideration
the record be-
post-termination procedures
the
availa-
wages
us,
fore
back
we decline
award
to,
by,
employed
dis-
ble
but not
the
appellants.
charged employee.
of
the reach
As to
opinion,
it
the discussed
we observe
2) Attorney fees.
by
Congress may not
is the law that the
attorney
“in-
legislation
is an
Allowance of
fees
its
override
Constitution
court,
equitable power”
any
public employers
herent
of
more
other
than
“ ‘overriding consider-
may
utilized
Applicable
wherever
do
to the case at bar
so.
re-
any
the need for such
ations indicate
statute
there did not exist
Illinois
”
1,
Cole,
5,
covery.’
93
Hall v.
412 U.S.
spelling
procedures
in
out
be followed
990
1946,
1943,
(1973).
attorney fees,
S.Ct.
principles
attorney
for
fees:
been abused. Gordon
Illinois Bell
v.
Telephone Co.,
103,
(7th
330 F.2d
107
unquestioned
“Thus, it is
that a feder-
Cir.),
denied,
909,
cert.
379 U.S.
85 S.Ct.
may
al court
award counsel fees
ato
197,
(1964);
991
only
orthodoxy
pall
the
rele
of
the
that
over
classroom.”
We first observe
Keyishian
Regents,
falsity
appellants’
v. Board
vant
in
above
of
385 U.S.
resides
charge
589, 603,
675, 683,
by the
17 L.Ed.2d
the
87 S.Ct.
that
statements made
(1966).
the
Tinker
The
of
629
See also
v. Des
Board
truth
“were false.”
Dist.,
503,
upon
Moines School
393 U.S.
506—
facts
the
were
which
terminations
507,
733,
We,
(1969).
by appellants.
21
89 S.Ct.
L.Ed.2d 31
made was admitted
grant
subject
freedom
however,
Academic
“d""''. not
this much
discuss the
say
alleges
Appellants’
teachers a
to
or
in class
license
write
further.
brief
they may
whatever
feel like.” Mailloux
in
“the matter” was
“executive
discussed
(1st Cir.,
Kiley,
1242,
30,
448 F.2d
1243
April
1970,
an
v.
on
session” held
1971).
Holmes,
agreement
dismissing
F.2d
Clark v.
474
appellants
See
as to
Cir.,
928,
(7th
1972),
1,
They
931
cert. denied
May
on
al
was reached
972,
2148,
lege
93
36 L.Ed.2d
further, however,
411 U.S.
S.Ct.
the resolu
(1973).
particularly
length
However,
dismiss,
695
out
tion
set
at
to
as
has not formu
herein,
adopted
open
where the school board
“was
session.”
guide him,
meetings
to
lated standards
academic
made
have
Statements
at such
a certain lati
freedom affords
teacher
by the
be ab
been held
Illinois Courts to
judging
whether
is
solutely
McLaughlin
tude
material
privileged.
Ti
v.
lendis,
and relevant
to his instruction.
Ill.App.2d 148,
suitable
115
N.E.2d
253
need
85,
“First
Amendment
freedoms
(1969);
Doner,
88
Ill.
Larson v.
32
breathing
space
.
.”
471,
to
.
App.2d
(1961).
survive.
general subjects.1
v.
403
Academic freedom obscene. See Cohen
pro-
15, 20,
1780,
exchange
29 L.Ed.2d
of ideas which
91
entails the
U.S.
S.Ct.
(1971); Fujishima
284
v. Board of Ed-
mote
broadest
education in its
sense.
supra
ucation,
2, 460 F.2d
1359
note
at
The
was not so
Woodstock brochure
15,
California,
n.7. Miller v.
413 U.S.
use was ob-
offensive that its classroom
24,
2615,
2607,
93 S.Ct.
APPENDIX
ON EN BANC REHEARING Judge, SWYGERT, Chief Before Judge, and ENOCH, Senior Circuit PELL, CUMMINGS,
FAIRCHILD, TONE, STEVENS, SPRECHER Judges. Circuit
ORDER and the of the briefs consideration On rehearing arguments presented at banc, judgment district en equally divided
court is affirmed
vote. PHILLIPS, Sr.,
Frank Phi Frank l l ips, Jr., guardian, his natural Phillips, Sr., Appellants, Frank
v.
Fred A. TRELLO et al. No. 74-1012. Appeals,
United States Court of
Third Circuit. 12(6)
Submitted Third Under Circuit Rule June 1974. July 26,
Decided