Harrod v. Board of Education, City of St. Louis, 500 S.W.2d 1

Harrod v. Board of Education, City of St. Louis

500 S.W.2d 1

Mo. Ct. App.

1973

Check Treatment

*1 Buchanan, Lloyd James E. HARROD Plaintiffs-Appellants,

v. EDUCATION, CITY OF ST.

BOARD OF al., Defendants-Respondents. LOUIS, et

No. 34426. Appeals,

Missouri Court of

St. Louis District.

Sept. 18, 1973. Louis, Oldham, plain-

Charles R. St. s-appellants. tiff *2 McClellan, Louis, (now as group St. for de- American known S. student James fendants-respondents. you, as of Alliance) one Student in the group,

the the assisted of presentation program, of a which DOWD, Judge. Chief only in- obscene and calculated to hatred, racial but was flame discord rehearing. This case before us on in direct of the instruc- contravention original the judgment reversed given you by principal the the of tions rehearing of the Circuit Court. The participa- in that it allowed active held en banc. The before Court Cir- persons students at tion of who cuit City of the of Louis af- Court St. School; in connection with firmed the decision the Board Educa- of of pro- presentation of another auditorium Louis, City tion of the of hereinafter St. February by presented on gram Board, referred to as the wherein group known as the the same now permanently employ- terminated the Alliance, you, as one of Student ment Lloyd of E. Harrod and Bu- James by cautioned the Princi- sponsors, were chanan, appel- hereinafter referred as permit an- pal devеlopment not to lants, appeal as tenured This teachers. program to the one other similar sulted. that, previous year, but The case was submitted to the trial court instructions, you acting contrary such upon transcript proceedings be- fact, permit development did, in Board, fore including all exhibits. setting in program, motion similar presentation forces resulted originally charged ob- inflammatory and of a as the Board follows: one, inciting the previous as the scene “It charged and prior to riot and violence. Thursday, 12, 1970, you, act- specifically charged that “It is further ing others, alone and in concert with you act- have throughout period caused, suffered, permitted pro- Al- sponsor the Black ed as gram to be to the student liance, the Afro- originally known body, which was obscene and calcu- have, disregard Group, you American to inflame lated and in- discord you imposed upon responsibilities violence; cite the students to riot and development sponsor, condoned aas causing, suffering, that in and permitting of ra- growth among thеse students presented, you to be so act- cial discord and hatred. disregard ed in your duties and in dis- obedience of administration the school specifically charged further “It is you continually and that have disrespect the school encouraged you period tracted of time and en- condoned yourself absenting administrators couraged disrespect school admin- classroom, your class leaving your from sought istrators to foster racial dis- stu- unattended, by encouraging disruption harmony, tension and contrary to act your charge dents school.” the administrators. directions of At request attorney for the have stated above “All of matters specific charges more made disruption created tension which read as follows: disregard Your acts were school. aas both specifically,

“More it is and duties charged your responsibilities ac- February, 1969, of a student sponsor and as a on the teacher occasion contrary Regulations tivity, of an of Education proved by Beaumont the Board the Afro- Hurt, member, heard Jr., E. schools, рarticularly the conduct of the James 2.330, 3.100, day’s proceedings but has Regulations only the first 3.240 and 3.330 Instruction, testimony. Department transcript of the read the entire Sec- had ondary Depositions of numerous witnesses Division.” hearing began and been taken before hearing, Board, After a before the and cross-examination examination *3 following Board filed the of its statement introduced Superintendent exhaustive. The proceedings, fact, findings of conclusions Appellants introduced 19 exhibits and law, opinion: and a memorandum appeared Altogether 9 witnesses exhibits. Superintendent and 12 for the witnesses THE hearing “BEFORE BOARD lasted all Appellants. OF EDUCA- for the TION THE finally OF CITY parts days, being OF ST. LOUIS or seven of the

STATE forty argu- OF MISSOURI minute oral terminated with 3, 1970. ments June KOTTMEYER, Superintend- “WILLIAM Board, being fully “The advised Schools, ent of having given full considera- premises, and v. arguments of testimony tion to the E. HARROD and LLOYD JAMES counsel, finds, as follows: BUCHANAN, Teachers FACT “FINDINGS OF Kottmeyer, Superintendent “Dr. William Schools, suspended teachers at two Racial tension has existed “1. School, High Louis, Beaumont Feb- years St. some Beaumont 12, 1970, ruary on recommendation have en- administrators involved, directly Administrators promote because racial harmo- deavored disruption required at the School which ny. period nearly to be closed for a ten sponsors Appellants of a stu- “2. were days. teachers, tenured two Messrs. group dent called the Black Stu- Buchanan, Harrod and suspen- now under (formerly dent Ameri- Afro sion, appealed to the Board of Education can Club.) and requested public hearing of their produced by An auditorium session peal “3. Superintendent’s decision under American in 1969 was Afro Club provision Missouri Sec. 168.221R.S. racist, promoted inflammatory, and Throughout proceedings, disharmony resulting two tenured as referred to disruption. Appellants. session had “4. The 1969 auditorium notice, proper “Pursuant a formal students, faculty, divisive effect on

public hearing starting p. was held at 2:30 Many objected to the parents. April Superintendent onm. 1970. The sponsors of and to the represented by to Schools was S. James presentation. McClellan, special appel- as counsel. The representеd by lants Charles R. Old- ses- Following the 1969auditorium “5. Joseph ham and McDuffie as co-counsel. spon- sion, Principal told the Nine twelve members St. hurt and shocked that he was sors including Louis Board of Education presentation. by president, presided, present who auditori- throughout all the Two other sessions. “6. Prior a scheduled session, warned por- Appellants Board members were forced miss um type the 1969 hearing, repetition tions of the but have read the to avoid program and that transcript testimony written responsible for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍results. person. held they did not hear One produced “7. Auditorium Suspension permanent session “5. termi- Black Student Union in 1970 Appellants nation of service of disharmony, upheld moted racial and re- under the facts fire, injuries sulted in closing Appellants because failed to dis- period school for charge responsibilities substantial time. teachers and aof student activity, contrary Regula- Super- “8. After 1970incident, District approved by tions the Board of intendent, Super- Assistant District Education the conduct of intendent, Principal and all three schools, particularly Regulation 2.- Principals Assistant informed Su- 3.100, 3.240 and 3.330 of the perintendent Appel- Kottmeyer that Instruction, Department of Sec- suspended lants should be immedi- ondary Division.” *4 ately. have We set out Board’s memoran- Inflammatory pictures posted “9. opinion dum the basis for demonstrate of Black wall of Room home the Board’s decision. Union, period of Student for time. “MEMORANDUM OPINION testimony Notwithstanding expert “10. at auditorium skits charges by the “Three were made Su- inflame racial sessions amplifi- perintendent as forth in the set disharmony, residting disturbances charges requested by cation of counsel immediately following did occur “One, disregard Appellants: of for in and such sessions both 1969 administra- of instructions school 1970. permitting programs to in unsuitable tion presented by the Black be “CONCLUSIONS OF LAW Club) both (formerly Afro-American in our As indicated 1969 and 1970. disrespect “1. and Racial disharmony and of Findings Fact Conclusions of for administration school result- Law, charge opinion fully in our is this ed from activities Stu- Two, the de- supported. condonation of dent Union. velopment growth of racial dishar- Sponsors groups “2. are re- mony. of student of the In view skits

sponsible assuring activi- again the auditorium session in 1969 harmony groups such are in ties of inflammatory speeches deliv- objectives students, adminis- of the ered the misuse session, tration and Board of Education. microphone and the at the 1970 many post- inflammatory nature of of the Appellants after the 1969 “3. warned Bulletin ers carried on the 104 Room incident, and, again prior to the Board, opinion charge also in our this incident, responsible are held Three, the al- fully supported. Charge disregarding instructions with- leged from the classroom absence permitting disruptive audito- hear- denied at the permission, was out occur. rium testimony ing. There was conflict per- what possible confusion as Superintendent Schools “4. The by the Princi- granted suspending imme- mission had been justified upon the classroom. pal to absent from ad- be diately tenured teachers felt that of the Board Superintendent, Some members vice of District fully sustained. Superintendent, charge this District Assistant discussion, agreed it was Prin- Principal After and three Assistant be charge would allegatiоns in such cipals. Ap- our Findings major produced by omitted from of Fact “A defense bearing pellants assumption hence would have no on the con- seems own, clusions reached. acted the students some of the obscenities unsuitable summary testimony “Detailed Appel- skits were not condoned weight given and the to each witness clear, however, Ap- It lants. from unnecessary. would seem Minor con- supervision pellants’ testimony, own testimony appeared but, flicts in our skits, speeches and activities opinion, Findings fully Fact responsibility students was the justified preponderance by the Appel- Appellants. (Tr. 726.800). Both testimony. Superin- Assistant District testified that one of their duties lants Gregory’s report tendent written proposed check the was to text of (Exhibit 142) incident S-19) (Tr. 745, 771, (Tr. grams. 821). Appellant fully corroborated other witness- (Prin- Harrod testified that Mr. Nelson agreement es. There was substantial said would mark the cipal) happened in Al- what “unsatisfactory” if the 1970 though disagreed witnesses on certain up.” (Tr. was not “cleaned suitable Ku details of the Klux Klan scene specific warning In viеw of 823). used, the precise language in our professional required agreed by virtually all consensus as assuming such a sensitive actually present at the au- witnesses *5 Appel- in our sponsibility, ditorium sessions warrants our conclu- spon- as in their lants failed functions presentations sion that these were racist Perhaps in 1969 and teachers. sors nature, highly inflammatory and in con- misunderstanding to what there was as vulgar language, and tained obscene and repeated it was required was when —but in a showing high were unsuitable 1970, aggravat- in warnings, after two in a school school form, opinion summary action ed our Appellants marked tension. suspend Appellants imperative. produced expert three Mrs. witnesses: directly involved administrators All six Kirkland, Evans, Mr. Brown and Dr. recommended this action. hypothetical questions who testified on objec- that the text of not skits was ev- of all the full consideration “After Superintendents’ tionable. Some idence, action of we are convinced witnesses, cross-examination, agreed cor- Superintendent of Schools unobjec- that the tеxts of the skits were his administrative and we sustain rect However, the Princi- tionable. assistant Appellants By agreement the decision. Brasfield, pal charge, Mrs. and sever- payroll until the on the school remained witnesses, highly competent al dis- other 1970, 13, year, end of the school June agreed considering the context in which disposi- pending assignment, but without presented. were to be feel skits We Accordingly, they hearing. tion of this testimony expert witnesses’ and terminated. permanently now be should supporting comments other witnesses ignored in should be view of the obvious "BOARD OF EDUCATION fact that both 1969 and 1970 LOUIS ST. CITY OF seriously disrupted as result Pounds Boisaubin Elmer Eugene /s/ /s/ presentations. Re- of these auditorium Doyle E. Busse Andrew Frederick gardless any theoretical to be results Mrs, Harris S. Hurt James Gilbert E. B.Scheetz Earl Ruth Reverend hypothetical predicted response Nance, Sr. questions, actual fact is that Schoenbeck Smiley Wallace AdeliaT. W. Martin" Schlafly L. Malcolm Daniel kept disrupted be and had to school was nearly days. ten For that closed for points on this Appellants and raise two Findings feel our Conclu- we reason concise make peal: failed to the Board fully justified. (1) are sions by competent and sub- supported findings er are of fact on which statements record, order; upon the whole stantial the Board based conclusions may not by law. We supported authorized are not (2) Findings Fact on the evidence substitute our competent and evidence. substantial and we the Commissioner for that of decision, unless it is set aside his may not point, to the first As by competent substan- supported findings num Board’s contend that record, or it is tial evidence the whole 7, 3, 4, are and 10 conclusions bered law, arbitrary, ca- not authorized improper for conclu basis are therefore pricious an abuse of discre- or involves They argue that words sions of law. Ketchum, Favazza v. tion. ex State rel. “racist”, “in phrases therein used such Mo., 542, Pinzino [2, 3]; S.W.2d disharmony”, flammatory”, “racial Mo., Supervisor Liquor Control, v. qualify Findings “divisive effect” do 20, [4]; Theo- Baker & S.W.2d agree that these words of Fact. we While dore, Inc., Mo.App., 400 Quinn, v. S.W. phrases conclusion- can be considered [1], 2d 479-480 applied is ary, test whether 365 Mo. of the Administrative Procedure In pellants of the our Findings Company v. Public Service “For our p. State Supreme 98: ex rel St. Louis purposes, Facts Court 291 S.W.2d 95 basis fairly in construing for the decisive informed the Public Service Board’s order. Commission, (banc Act matter is § 536.090 stated 1956) ap dence Favazza Baker ences which cision, together substantial evidence we consider the evi cision to determine whether findings “In in a reviewing the & v. Theodore, Inc., light Ketchum, supported by competent support most favorable all reasonable ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍supra, Commissioner’s it. State ex. v. Quinn, l. c. 546 it and his to his supra, infer ^[4] rel. de de ; difficulty determining that we had no c. 480 l. [6].” *6 report and order from the Commission’s in accordance with this We state facts findings upon that order was a number of In the Fall of 1968 mandate. and, based, consequently, hold that we permission form an students obtained case, report and in this consid- order of this The facts Club. Afro-American whole, ered as a are sufficient our ” * * * presentation of case around revolve review. Club by the Afro-American progrаms two Fact, Findings believe the of We Union) be- Black (later called the and the entered of Law order Conclusions body of Beaumont the student fore appellants informed against fairly presented were programs These School. for its decision basis in 1969 and History week during Appellants’ for our review. sufficient Buchanan Appellants Harrod and 1970. point 1 is denied. both group for sponsors for this years. point that appellants second As to supported by are not of the Board findings Kottmeyer, Superintendent Dr. William we competent and substantial Schools, generally un- that it is stated re- guidelines for our point out system that through the school derstood Supreme reiterated our view were are re- groups sponsors extra-curricular Boy, Quinn, in Tom Inc. v. S. Court and are sponsible for their activities wherein 1968) banc (Mo.

W.2d guid- supervision and sponsible for their court stated at 225 : page keep these ance, sponsors must spirit and let- harmony groups this case in with scope our review in “The arrangement ter the curricular whether to determination of extends system. sсhool of the Commission- findings and decision presented depict- There other early the Club ob- skits In late or principal, ing events the lives of Touissant permission from the tained Turner, L’Overture, Tubman, Meinhardt, during an Harriet Nat present program a Parks, Truth, a en- History Sojourner Rosa and skit during session sponsors titled “In White America.” There were week speeches poems, also one of which was prepared along the club with the students During the audi- entitled “Ballad Landlord.” program which was skit, reported he the Nat Turner program con- torium. Prior to the 1969 an animal. was skinned like held Meinhardt with ference regarding and others the two Board, a hearing During the before the They in- presented. program to number of witnesses were (non-students) structed that no outsiders speeches transcript the skits participate program. The were to requested to give accomplishments to show the program was promoted judgment as to whether the skits of Blacks. A number of racial discord and hatred. including officials found witnesses given An account of this appropriate. the material Mershon, by Mr. Leonard Administrative beginning Beaumont. At the Assistant at However, Brasfield, prin- assistant Mrs. sponsors were on the taped cipal, speech found Mr. Mark Jones’ student, stage. speaker, The first was a objectionable to be and was of as the Jones, Mark who introduced himself portions speech when viewed and stated that the Blacks Prime Minister at Beau- light racial conditions the black destroy had to before Whites disruption mont could incite students to progress. There was man could make tes- disrespect for the school and would foster timony appellant attempted Buchanan Kottmeyer, administrators. Dr. William stage. get Mark off the How- Jones Superintendent, stated that also ever, appellant Buchanan testified speech fostered racial his did not believe cross-examination disrespect. Dr. disharmony promoted speech that “the white language skits found material in the Kottmeyer also enemy the black man was the natural Truth, “In Sojourner Rosa Parks de- man, if the white man wasn’t [and] produce America” not calculated to White man, get stroyed the black in effect would harmony. He also stated that mate- animosity. up racial nowhere” would stir ra- rial “In America” would cause White *7 disharmony. cial also a in which hooded There scene was the Klux Klan were riders described as Ku found the material Mr. Mershon kicking boy. a black objectionable it re- where Nat Turner skit ani- like an ported being Turner as skinned a Group were who The Black Artists opinion that the the mal. He was also of group performed. This group non-student “In testimony of the Mrs. Tutson White of robbery consisted put a skit which on beating was relating skit to a America” dialogue Blacks was that all The Blacks. to racial hatred. calculated inflame This attempt destroy Blacks. should using pro- words profanity the of the 1969 group During used Mershon, white teach- repeatedly. gram Mr. a number of Black and “mother-fucker” presenta- disgusted program during the with “in and out” ers were who was At the con- program, testified of auditorium. tion the 1969 walked out at- objectionable, boy program and “I didn’t a white clusion of the program was attempted program that was to leave the build- type tacked as he think it was his any high ing, on face.” school.” “had blood educational 8 photo a

As result of ies.” Another showed a number upset policemen “nig- pigs were Beaumont dressed shouting demoralized. requests gers, niggers.” photo written resignations teacher trans- On this higher oink, photo much fers other schools were “Kill kill oink.” Another youth strangling pig Public than other showed a black a St. Louis stabbing him policeman dressed as a authority teacher was The School. problems pictures the back The Discipline neck. undermined. calculating A of teachers to foment increased. number described complained to Mr. Mershon about discord. him, gram and asked in the world “how It is as a true room was used sponsors permit a

teachers could be study groups; hall other how- student a to be sort ever, that a teacher testified member high school?” put up number Student Union photos day play, The Mein- of these the bulletin board. The following Mr. on plaintiffs pictures year his office been there for about hardt called into had pre- days and told that he was hurt and a half and were there two before them day program. next was the program. The the 1970 This room sentation sponsors meeting met of the Black Union. Mershon room Student hour a half and told them was program, After Mr. Clifford the kind which had been out- Evans, Superintendent, District lined. weekly meetings of his with Dr. course plaintiffs efficiency ratings received Kottmeyer frequently expressed grave con- average average about two and above disharmony cern about the considerable at However, weeks after Beaumont was reflected the disci- effi- Kottmeyer explained that teacher ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Dr. pline problems of the Mr. Evans school. upon the ciency ratings primarily based great difficulty deal of attributed a efficiency classroom. teacher caused Beaumont discord sponsors He of the Black Student Union. Among Board was findings expressed the fear that be posted inflammatory pictures totally disrupted if effort were not greater had been used the wall of room 104 which made to control situation. The evidence by the Black Union. Student large finding bul- as to program, Prior Mr. Evans 104, the home room of letin board of room spoke Nelson, newly appointed to Mr. Union, were nu- there principal him in- at Beaumont and told 8" de- photos merous 10" which were x form the the same kind of pictures” objectiona- scribed as “hate put program as on in 1969 would not introduced into ev- pictures ble. permitted. Many by this idence and examined Court. In the Fall of told Nelson pictures Black Panth- were from the *8 pellant Black that he like the Harrod would Party. picture pigs dressed er showed One present Student Union to “Pig as police. photo Another described as during history Feb- program black week a pig judge a showed dressed as Justice” And, his with ruary, in accordance lady justice placing money on the with Evans, Mr. Nelson from Mr. instructions justice; it the trial of scale of referred to appellants to the January, 1970 warned Huey Newton, Eldridge Bobby and Seale any as had been program avoid such these “Hear Cleaver. It contained words: in- presented appellants were in 1969. The Charges the Trumped-up the Juries —See to stress program the was structed that . the Fascist . . See Non-Peers of hate.” but to be “void awareness” “black Running Dog Prosecu- Judges And Their pointed out 1970, Nelson January, In Mr. Vanguard tors The Revolutionar- Railroad derogatory to the teacher made remarks appellant that the to Harrod and others igno- they telling them that feel students program young make blacks was to activity they rant were too dumb to under- any and proud want but did not the any stand. students words “God emphasize degrade hate eth- The used nor would the D—” and “Mother f-” toward group program should stress nic and the dragged teacher teacher harmoniously. physically and the living together again carried out the The skit room. met the Mrs. Brasfield man’s mis- out the white the scheme January, purpose of 1970 for the twice treatment of the black man. determining guidelines format the and as program the Mrs. found the program. gave the The skits Brasfield students the ra- sponsors February 3 or 4. rehearsal obscene and to the on inflammatory. cially reported to Mr. She 1970, February Nelson On Nelson, program principal, the was Brasfield attended a rehearsal Mrs. very program. to the similar present part program. was Mr. Nelson appellant Nelson met with Harrod rehearsal; Mrs. saw the Brasfield (Feb- other school officials this day same complete rehearsal. Both found ruary program 6) and warned that the was objectionable. Brasfield gram Mrs. found contrary guidelines; to there was program racially obscene and inflam- program to be no which would rehearsal, matory. During spon- discord; up disharmony stir racial stage assisting sors were on stu- program not to on was reflect presentation. no time dents At dur- sponsors ethnic group; obj ing the rehearsal did the ect or and, responsible held program; for the put on tell the students could not this program up.” had to be “cleaned program. type of Appellant Harrod Mrs. asked Brasfield speaker During rehearsal a de- appear before the Black Student principal nounced the and condemned the objections outline speaker Another stated that Constitution. Bras- February did 10. Mrs. she were the victims Blacks of mistreatment secretary field told white man. Another called the skit Black Union that would refuse Student a confron- “Oklahoma Shootout” involved it would not change Newton, Huey tation of the Black Panther present program. Party police. Brasfield stat- Mrs. This and a program was then cancelled portrayed ed that this the white skit man’s However, on program arranged. substitute brutality mistreatment towards Bras- morning Mrs. encourage and black man and would stir field from the number of students found disharmony. up discord and stage prepared Union on the Student frequently used as pig term racist well put Mrs. Brasfield “mother f-.” ported Appellants fact to Mr. Nelson. by Mr. Harrod and Buchanan were sent There was a court room scene stage again Nelson inform to the judge pig. “Mother referred racist Union that “nigger” frequently f-” used. Mrs. appellants and emphasized brutality cancelled. again

This skit only stage but found Brasfield went man mistreatment black appellants were one there. The student man. white told to remain with their *9 The next was the classroom skit. skit audience. There were about 25 Black students However, about program was when played girl it and a who Student Union in begin, number of members part The of a white woman teacher. Disorder resulted. There was behind rium. were found off-stage and the storeroom put program. fire stage preparing Property building. was back- smoke filled the students Mr. Nelson met with these school; two damaged in the lunchroom told stage being and after students injured trying exit the up” program, workers were they “clean that would hospitalized for building; a teacher was go told ahead Mr. Nelson them result, Evans, Dis- smoke inhalation. As school present program. their Mr. days. for ten Superintendent, forced to close trict that was stated responsibility to authorize Nelson’s they appellants were Both admitted presentation program. of this pro- supervision responsible for the However, they February gram. they both stated that actual The preparation of nothing had present- to do with substantially the same as 1970was They program after 6. also Specifically the ed in the rehearsal. presented a skit, number stated the students the classroom “Oklahoma Shootout” which the of controversial skits present- were skit and the court room skit program. had “cut powder on her out” The had white ed. teacher judge face.” face “in white charges and D—”

The “mother f-” and “God are convinced words We abundantly sup again findings of the Board were used. competent evi ported by and substantial Superin- Gregory, Assistant District clear that the 1969 evidence is dence. The de- Mrs. Brasfield’s tendent corroborated and ob inflammatory program racially scription speakers program. The and white Both black scene. being authorities as denounced the school disgust. walked out and the United States Constitu- dictators charge appellants actively The “archiac, decrepit piece of being tion stage on the assist program and were paper.” speaker Another stated discord, Racial ing presentation. along in only way get the black man could disrespect for the discipline problems and boody society the white was to “eat man’s resulted. school administratiоn give up boody faggot punk es- Man tablishment.” “the He stated that preparation for In hanging years, and you for 100 officials appellants were warned [has been] you being such this is what deserve for as had been repeat not to damn in- appellants fools.” The program was the 1970 structed Mr. Gregory the classroom described hate, awareness”, to avoid “black stress sparring verbal teach- scene as between the harmoni- living together emphasize and to er and the became students. they They were told ously. enraged epithets at white hurled Contrary to program. responsible for the from “jumped teacher. Several students given and the instructions their duties seats, dragged her her assaulted develop- permitted the appellants them the stage.” off the skits were “laced more program which was ment of the 1970 profanity.” girl A member obscenities program. inflammatory than the 1969 poem recited a Student Union active appellants not in While “Prayer entitled to the White Man’s God” of its program the time charge of the punch heard “I know line: Jеsus they relieved presentation, cannot be me, spit my eye.” right because he development of responsibility for the racially oriented this obscene When Mr. Nelson tried to end the clearly dem- February 6 The rehearsal on gram, a Un- member the Black Student permitted the onstrated that told the stu- principal ion defied the high- development which was dents the audito- did have leave *10 H SIMEONE, (concurring). Judge ly inflammatory, orient- obscene and racist program The rehearsal substan- ed. ma- by the reached in the result I concur tially program actually as the same de- findings and holding that jority in time performed on 12. At no terminating the em- Board cision of appellants ob- during rehearsal did supported are appellants ployment of ject program or tell the students To evidence. and substantial by competent put type not could this me, been, for has conclusion reach this gram. This indicates deli- is the for involved struggle, agonizing proved rights the tenure balancing of cate secondary school interesting is teachers It that when the note op- to сontrol board right of the school school authorities found rehearsal educational so that the a school objectionable, eration of and obscene and informed so may car- society, process, to our appellants, appellant it so vital was the Harrod harmony essential quiet ried on who asked the school to inform authorities learning. objec- Black Student of their Union programs rather inform tions than proceed- implicit in this Intertwined again This indicates himself. primarily issue although not ing, appellant disapprove Harrod did not faculty and stu- raised, right of is the not program in the re- rights their constitutional to exercise dents hearsal. expression. of free developed The 1970 which was is review Our are certain basics. There appellants under the ended in disorder limited; to a determination limited chaos, defied, principal’s authority was findings and the decision whether the set, damaged, fire property school appellants’ services terminate the Board to personal injuries inflicted and the school competent and substantial supported by are was forced to close. record. School upon the whole evidence power to exercise have the are convinced boards We affect in matters being responsible development judgment discretion may and a court management ing school being forewarned exercises permit racially programs, not to interfere unless oriented not unreasonable, arbitrary, responsible powers in an setting are thus in motion such Magen manner. presenta- capricious unlawful forces resulted or Education, 347 S.W.2d racially tion of inflammatory and ob- heim v. Board majority As (Mo.App.1961). scene in 1970. out, may not correctly points we stated, For the reasons we hold that for that judgment substitute our findings and are decision the Board findings aside may not set Board and we supported by competent and substantial ev- there is no substantial judgment unless idence. is affirmed. it the conclusion for it reach discretion to broad Board has did. that discretion CLEMENS, JJ., but SMITH and concur. make decisions good reasons Standards unbоunded. GUNN, WEIER, JJ., con- KELLY and authority. unbounded to control exist separate opinion and in majority cur in pro in issue precisely While concurring opinion. “First settled now ceeding, light applied rights, Amendment SIMEONE, separate con- J., concurs envi special characteristics curring opinion. and stu ronment, available to either argued that hardly be It can dents. McMILLIAN, J., dissents. *11 12 present instructed in shed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍constitu were 1970 not to

students or teachers program similar rights speech ex to the one 1969. There tional to freedom of or pression for Board gate.” Tinker was sufficient evidence at the schoolhouse Community appellants per- reach the Independent conclusion Des Moines v. 506, development Dist., 503, presen- mitted the of the 1970 School 393 U.S. 89 S.Ct. 733, 736, disregard tation in of Vail v. instructions to avoid (1969); 21 L.Ed.2d 731 repetition program. of earlier This Board of Education of Portsmouth School 592, Dist., (D.N.H. notwithstanding the fact that Mr. F.Supp. 597 Nelson 354 permitted presentation having like all after 1973). rights, But these law, [Supreme] been told that would “clean are not absolute “the students up” repeatedly emphasized may the need there be dif- Court has While authority of obscene or affirming comprehensive for ferences dis- ruptive officials, program, nature of . ... of determina- by had to be made prescribe conduct tion Board control 507, Tinker, supra judgment context the situation and such 393 of schools.” U.S. when, made the Board. There is 89 S.Ct. at 737. There are times may appellants program by why, a knew of and there are Board reasons February or 4 and knew of restrict 3 these freedoms. preview at the time of the rehearsal or precise right here of the issue is the 6, February Appellants, charged Board to terminate the of School services responsibility sponsors, with the That undoubted right tenured teachers. is under of the school authorities directions provided within the the termination falls put program, not to on a similar law, reasonable, procedural is ambit of the they 6 reason of rehearsal process good is due afforded and type knew that the same Annot., 4 cause. collected in A. cases See planned. 168.221, (1965); L.R.3d 1090 RSMo § course, is, legitimаte there While 1969, Regulations the De- V.A.M.S. place in our for free academic ex- schools Instruction, partment Louis Public St. pression and dramatizations of historical Schools, Secondary (1968), Division Rules events, contemporary dramatiza-

2.330, 3.100 and deci- 3.240. Innumerable proud heritage culture and tions upheld right sions have board part learning ethnic as a of the group, terminate the of a teacher in both services dramatizations, process, expressions or or secondary good college institutions disrup- their method of exercise cannot be faculty and sufficient And a advis- cause. materially legiti- interfere tive or may responsible or be held for the activi- mate educational endeavors. supervision. of the under his ties Jergeson v. Board of Trustees society. A unique in Teachers 7, (Wyo.1970). No. Dist. 476 P.2d 481 area; in his in a sensitive teacher works neglect mis- Passive as well affirmative shapes the attitudes of he environment may be sufficient to hold the ad- feasance society in young people toward the sponsor responsible. visor or special privileges afforded live. He is tenure. freedom and academic —academic facts, Under this record and the responsibilities. And But he also bears steps Board had reason take bounds, subject to cer- within definite possibility minimize of new discord Board tain reasonable controls record, a troubled school. And under this employed, which has the re- whom he is competent there was sufficient and evi- sponsibility providing good education dence charges to substantiate the young people jurisdiction. for all within its appel- termination of the services Ap- hearing. one lengthy lants. No denies that held a The Board due faculty procedural Appellants pellants afforded advisors. process. judg- (Emphasis Elec. added.) Wagner exercised its Wood v. 647; Corp., ment to terminate Mo. Wil services S.W.2d pellants Co., Mo.App., by a liams International unanimous I believe v. vote. Shoe 662; Dyche v. loc. cit. the members of S.W.2d *12 Bostian, Mo.Sup., . .” supported by competent Board and 233 S.W.2d opinion It is this Board writer’s that the evidence on the record. substantial whole unreasonably reaching acted in the result I concur in reached therefore the result it did and decision the by majority. the capri- arbitrary in this instance was 3, 6, findings 4, 7, in that 9, cious Nos. clearly against overwhelming 10 were the McMILLIAN, Judge (dissenting). sup- weight the evidence and were not ported by competent substantial evi- dissent. I dence on the record as whole. plaintiffs’ appeal is that The crux of Fact Findings of 3 and 4 concerned Nos. in ad- sustaining School Board’s action auditorium in session. The skits decision of Kott- ministrative defendant depicted the 1969 events certain meyer terminating in permanently his- and incidents lives black of such plaintiffs’ employment improper Truth, figures Sojourner as torical Nat findings that certain of fact essential Turner, Tubman, Harriet Rosa Parks supported competent by and substantial Dr. Martin King, Luther From a read- Jr. evidence on the whole and thus record scripts ing appears it that the skits brought charges failed to substantiate the accurately important dramatize events by Kottmeyer plain- defendant on which history country of this and as such tiffs’ based. dismissal was certainly proper subject high for a question thus to this court commemorating school auditorium session is, competent was there evi- and substantial History Week. support “Findings dence Board’s opinion that, au- my It is as to the 1969 3, 4, 6, 7, I Fact” No. and 10? While session, majority failed to ditorium am agreement guidelines in basic in review- consider the record a whole by Supreme set Court forth the Missouri au- Finding 3 that the ing the Board’s No. Boy, Quinn, Tom Inc. v. 431 S.W.2d “racist, inflammatory ditorium session (Mo. of admin- 1968) banc review disharmony.” The promoted decisions, I majority, cited istrative opinion that Dr. majority ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍obviously feels statement court feel Kottmeyer’s propriety observations on the Dittmeier v. Missouri Real Estate Commis- is definitive and the content of these skits sion, (Mo.App.1951) 237 S.W.2d be and conclusive. record must guide- an additional adds criterion to those properly viewed whole order to majority has failed lines which the findings view Board. In the stat- consider. Dittmeier case we “ Dr. that, reviewing hearing ed the Board’s defendant Although . . At . Evans, superin- Kottmeyer, Mr. a district substitute court cannot its own Mershon, tribunal, tendеnt; principal assistant that of the administrative Blow, High at Beaumont and Mrs. the rule deference should adhere to of due School, credibility teacher at Beaumont to findings involving of fact to read the skits that were witnesses, duty wheth- asked its determine give and to at the er made session reasonably tribunal could have they opinions as to whether or not upon con- its reached result findings and whether objectionable, found the skits all sideration evidence before ra- promoted or not felt that the skits against clearly and to aside decisions set and hatred. cial discord overwhelming weight the evidence. Kottmey- skit, ica” was taken from (1) two sources: As Turner Dr. to the Nat testimony Mr. K.K.K. oath and the judgment; first make a er was unable to “ Report Mrs. from part skit; Proceeding ‘Official objected Mershon material in the Ku Klux . . Trials. . Before Mr. Evans found Blow and Tubman United States Circuit Court . . . to the Harriet Held As acceptable. Columbia, Carolina, the material said that South Novem skit, Kottmeyer Dr. ” har- produce racial Term ber 1871.’ and (2) Tutson’s was not calculated Mrs. “Testimony the materiаl account found Taken mony; Mr. Mershon Evans Inquire Blow and Select Committee to into appropriate and Mrs. Joint toAs acceptable. Conditions of Affairs in the Late the material Insurrec found Kottmeyer skit, Dr. tionary II, States 1872), Truth 59-64.” Sojourner (Wash: *13 not be calcu- history country, would Past in the the material events of said that this Mer- harmony; Mr. whether glorious ignominious or produce lated racial cannot be to the shon, swept found Mr. Evans avoided or carpet. Blow and under the If Mrs. purpose system of appropriate. educational is material our to truly individual, educate the then the indi controver- the most skit that caused The exposed vidual must be to the truth and “In America” from White sy was a scene permitted, proper then guidance, Kottmeyer stat- Dr. by Martin Duberman. to own on the course make.his to was calculated ed the material that of in history country. events of this harmony. Mr. Mershon promote was calculat- part The at High of skit students Beaumont testified that Mr. Evans hatred. who viewed inflame racial this auditorium session ed to junior a for small in approрriate years, approxi- their and material senior found mately ages session. class, an auditorium many for 16-18. For of these stu- but not dents, Mrs. by plaintiffs: called Beaumont School would be Three witnesses Evans, of Commu- last contact with form formal a Commissioner Pearlie Relocation, the Housing young education. As adults nity and these Service Louis, exposed Vice Presi- needed to City possible a National be widest St. dent, range for experiences Social and ideas in order to National Association member, help Commis- grow intellectually a National them Workers emotion- Brown, Andy ally. To Justice; deprive opportuni- Mr. them of for Racial these sion Relations, ties would purpose Human be to thwart the and in- Commissioner Louis, City system. tent of our City resident educational To avoid of St. confronting years; and for Mr. these students with the truth is St. Louis Jack great to Kirkland, only Social do Professor disservice stu- Assistant past mem- community dents but Work, University to the entire Louis well. St. University School Board ber of the my From review of the record there Missouri, they found that testified City, pears major one criticism of the be to be America” educa- “In the skit White speeches poems given at the ses- anywhere. appropriate for use tional sion; speech that criticism concerns the point by indi- important to out made Mark The record I think that it is Jones. departed that skits cates Mark from portrayed that the events Jones prepared speech Turner of his made a history. Nat text part America’s rebellion was statement to the his effect hanged after slave was necessary destroy in Turner’s before Virginia whites crushed Mark surgeons progress. for dissection black man could make body given to departure from purses made out of statement was souvenir Jones’ prepared allegedly placed speech. plaintiffs text of his Turner’s skin. skull surprised plaintiff at- County Buchanan Courthouse. were Southampton stage tempted off the drag “In Amer Mark The material White for skit Jones seeking for trans- in- to their motivation It is that statement was made. after drawn think that the conclusion fers. I comprehensible me how one Kottmeyer an unsubstantiated held Dr. Club could be the Afro-American prejudicial highly one. spontaneous re- and a sponsible admittedly student, departed mark made Mershon, an administrative Leonard speech. Mr. prepared of his text from the Beaumont, testified that assistant drag attempting to Buchanan’s actions authority of undermined attempting stage and off the Mark Jones disciplinary increased and that there were disap- clearly to silence indicates his Jones problems Mer- among students. proval of Mark statements. Jones’ testimony even to establish or shon’s fails Further, support the record fails to any causal between disclose connection spon- charges made the Board disciplinary prob- 1969 session and these of a sors assisted conclusion about Mershon’s lems. Mr. gram which was obscene and calculated disciplinary increase reasons The ob- racial discord and inflame hatred. problems unsupported by by the charges leveled scenity issue record. barely Under warrants comment. two majority points out about obscenity any judicial test of *14 program plaintiffs after the weeks with, part is familiar no the 1969 writer ratings average and efficiency received any way in ob- auditorium session was attempts average. majority to The above in allegedly scene. were Obscenities used away stating rat- explain by that these hardly quali- fact 1969 session but this upon primarily the effi- ings were based the el- fies obscene. to As If ciency of the teacher classroom. alleges the charge ement of calcula- only pri- efficiency in hatred, the classroom was tion to inflame discord racial and ratings not marily the basis for these and there not a scintilla of evidence grading criterion for teacher effi- the sole any to show intention on average part ciency, why and criti- didn’t below produce to racist appear aspects of the cal remarks for those program at the auditorium session. performance job that were teacher’s regards session, to In I the 1969 solely efficiency, concerned with classroom take with majority’s issue statement e., (i. supervision of in extracur- students that, “as result of the 1969 ability handle ricular activities as the to upset teachers were and demoralized. in a students situation outside the class- resignations Beaumont teacher room.) quests for transfers to other were schools Findings “In- higher any much than in other of Fact No. 9 found that Louis St. posted pictures wall flammatory were authority Public The School. of Black Student Un- Discipline prob- teacher of Room home was undermined. ion, period majority for of time.” lems with the Dr. The students increased.” great pain pointing out Kottmeyer opinion takes in requests for trans- testified pictures that that this court examined the higher were much at than fers Beaumont 104 and posted of Room any were the walls other school. His testi- St. Louis pictures was. mony implies what the content those However, con- responsible vividly detailing after requests being made. pictures majority states There no of the indication in the tents record study Kottmeyer that: Room 104 was used as (1) talked to any Dr. ever teachers, transfers, groups; (2) hall other student requested who about upon pictures been the bulletin doing Further, their had reasons so. prior to and a half year one of the board for over a requested a trans- teachers who majority’s program. hearing fer from Beaumont at testified plaintiffs interesting questions: (1) raises Isn’t was taken the were two absent due possible some, most, assigned it at least if not the fact that tutor inflammatory pictures high other After so-called schools. might posted learning been decision of have students other the Black Stu- Union; Union, arrange- than members dent Student Mr. Nelson made pictures if the inflamma- ments for a (2) were so substitute tory why as to foment racial did discord morning ses- On pictures the school administration allow plaintiffs sion the Mr. instructed posted year remain for a and a half in bring groups Nelson homeroom open why classroom? And were the and to sit with the auditorium them plaintiffs not advised of administra- prior Immediately the com- audience. objections tion’s pictures? program, mencement of Nelson Education, The Board of Findings found members backstage went several of Facts No. 7 found that the “Au- stage. of the Black Student Union on produced ditorium by the session following occurred: promoted dis- “And I to sever- Mr. Nelson: mentioned harmony, fire, injuries resulted students, I remember al of the don’t closing period of school for substantial student, specifi- particular I talked expert time” and “Not withstanding testi- cally young man who was mony that skits at auditorium he charge and after some conversation sessions would not inflame racial dishar- Nelson, ‘Well, me, said, we said to mony, resulting did im- disturbances occur up.’ it up. will will clean it clean We mediately following such both sessions said, hope go everything T will And 1969 and 1970.” clean up, it will right, all will clean we we ” plaintiffs In Fall of 1969 . . up.’ After some discussion. *15 approached by Nelson, princi- new Mr. the * * * * * * pal Beaumont, requested who that the that young “After man’s statement the present Black an Student Union audito- up, him to they clean it I told felt History during rium session Black Week. the go right wanted ahead because we In January, meeting the middle of a ahead program. just right . . move Brasfield, held Mrs. the coor- program.” original the with program, dinator of the discussed the con- program tents of time the the schedule. included that program The followed Thereafter, plaintiffs the met the with the that were speeches and skits some volun- requested Student Union and not. in rehearsal and others that were done program. teers to for The write skits the Admittedly of a rather vio- the skits were in to skits were turned the number great nature contained lent February 3rd or 4th and a rehearsal was attempted to Mr. Nelson obscenities. held on February 6th. tried to and a student program halt the became The situation him shout down. At the rehearsal refused to very as some students confused Mr. plaintiffs Nelson and his staff advised A fire was set the small leave auditorium. that the program was unac- stage the some in a behind storeroom ceptable up. and had to be cleaned Mr. done. property was damage personal to Harrod appear Mrs. to be- asked Brasfield notified plaintiffs were evening That the fore the Black Student and outline Union Kottmeyer their that services by Dr. objections program the to the which she date. being terminated did on February After Brasfield Mrs. was the delivered that it her directive the members of find from the evidence I Nelson, Union, principal, the Black Student voted of the Mr. decision present had Nelson program presented. the At the vote session. the time be the up cleaned it. The program the all evidence before tion of the ordered Un- suspen- Student in upholding of the Black the and the members decision Board’s arranged then the permanent Mr. Nelson termination of ion refused. sion the against advised pellants’ clearly and so the program a substitute services assigned the even overwhelming weight Nelson evidence. plaintiffs. Mr. during audito- duties plaintiffs to other fully powers I am aware the broad from It irrefutable rium session. authority pos- that the School Board granted testimony that he own Nelson’s The charged sesses. School Board with present permission heavy responsibility job and their is not originally can- had after he program certainly easy one. I quarrel would not program. celled that concurring opin- statement right ion that the School Board has the stresses that mаjority The terminate services of tenured teachers. development plaintiffs permitted However, conviction, my strong it is sup- more inflammato- which was ported by a careful review the record as majority ry than whole, evidence in ac- plaintiffs that the concedes completely Board failed to substantiate the at the time charge tive plaintiffs. charges brought against However, presentation. majority seriously have The Board could not consid- plaintiffs responsible contends that ered the record as whole still development of a In reached the conclusion that it did. this inflammatory, obscene and racist highly grossly abused its instance dis- However, uncontroverted ev- oriented. arbitrary cretion and in an ca- acted spon- that the idence the record shows pricious manner. cut some of the that were sors out skits February 4 originally submitted them on Board, By Findings upholding the indicates that and 5. The evidence further seriously has rights court affected the presented at the rehearsal of the skits some rights plain- plaintiffs. sponsors. In had nоt been submitted were, by large, ignored by tiffs searching record in this thoroughly opinion which a marked majority showed case, no I that there was (1) find preoccupation maintaining power or of them were plaintiffs either Board no matter in what “setting motion instrumental terminate manner Board acted. To *16 resulted in forces which teachers, employment good tenured inflammatory and ob- rights cause shown. The ten- must be or either (2) plaintiffs scene” and absolute, their ured teachers are not con- program’s them control had over subject unquestionably is to control duct go decision to the students’ content or However, authority. teach- administrative competent The Board did have ahead. may abrogated by a rights er not be on which to base evidence and substantial arbitrarily capriciously that acts Board charges “Findings of Fact” competent and there where absence of sub- Kottmeyer were not brought by Dr. right to terminate substantial evidence stantiated employment. continued my It Board. reasonably find- listed, made its For could not have reasons I would reverse ings and upon reached its result considera- the decision.