Billy D. Cook v. Robert W. Hudson, Etc.

511 F.2d 744

Opinions

PER CURIAM:

Appellants are three school teachers formerly employed in the Calhoun County, Mississippi public school system. Each was refused reemployment for the 1973 — 74 school year by the Calhoun County Board of Education pursuant to an unwritten board policy that prohibited the hiring of any teacher whose own children did not attend the public schools. At the time the hiring decision was made, appellants’ children were en rolled in the Calhoun Academy, an all-white, secular private school located in Calhoun County. Pursuant to the policy, defendant Hudson, the principal of the Attendance Center at which plaintiffs taught, did not recommend plaintiffs for renewed teaching contracts for the 1973— 74 school year, a prerequisite to reemployment under Mississippi law.¹ The court found that “[t]he sole reason for refusal [to recommend] was that the plaintiffs, otherwise qualified to continue their teaching duties, stated that they could not comply with the Board’s policy.” Shortly before the opening of the 1973-74 school year, plaintiffs brought this action for reinstatement, back pay and monetary damages, claiming that imposition of the Board’s policy violated their First Amendment right to freedom of association and Fourteenth Amendment rights to due process and equal protection. The district court construed the policy to apply only to teachers with children enrolled in the segregated Academy and upheld it as a justified part of the Board’s effort “to eliminate racial discrimination and remove its pervasive influence from the county’s public schools.” Cook v. Hudson, 365 F.Supp. 855 (N.D.Miss.1973).

I.

By order dated August 9, 1968, the district court instructed the Calhoun County Board of Education to begin the transition from a dual to a unitary school system. In addition to establishing a timetable for desegregating each grade, the court’s order set out guidelines to be used by the school board in making faculty employment decisions during the transition period and thereafter. These guidelines prescribed remedial measures to correct the prior practice of faculty segregation. The court further enjoined the Board to take affirmative steps to eliminate racial discrimination from the public schools and to bring about a unitary school system within the county. The timetable called for full desegregation of the school system by the 1970 — 71 school year; no one has suggested that this deadline was not met.

On a factual basis more fully developed in its opinion cited above, the district court found that “Calhoun Academy is a racially discriminatory institution formed in the wake of public school desegregation to provide a haven for segregated education” and that “the dominant, if not sole, reason why each plaintiff enrolled his or her children in Calhoun Academy was to avoid the desegregated public school system.” The court also found that prior to the establishment of Calhoun Academy no private school, either religious or secular, had ever existed in the county, and none except the Academy existed at the time the policy was promulgated.

When the Board decided on the challenged policy in November 1972, eight public school teachers had children enrolled in Calhoun Academy. Prompted by the concern that a proper accommodation to the court’s desegregation order required a faculty “totally committed to a desegregated school system”, and encouraged by a Justice Department letter seemingly approving its proposed action,² the Board verbally agreed to this policy:

Prior to the employment of a new teacher, or the reemployment of an existing teacher, the children of any such teacher, if living in Calhoun County, Mississippi, will be required to attend the public schools of Calhoun County or said teacher will not be employed or reemployed.

Board members testified that although more broadly stated, the policy was fashioned with only Calhoun Academy in mind. In evaluating plaintiffs’ constitutional claims, the court below limited its consideration to the policy terms “intended by the board and applied to the plaintiffs”, and expressly declined to reach any potential question that might be raised by application of the policy to a teacher whose children attended a racially nondiscriminatory school. 365 F.Supp. at 859-60. The district court’s approach of reviewing the policy narrowly as it was intended and applied, rather than broadly as it was adopted, has the pragmatic virtue of facing up to the real issue between the parties and producing a resolution of that issue on its merits now.³

Although the president of the school board testified that patronage of the Academy by public school teachers had been a source of controversy in the community, the keystone to defendants’ justification of the policy (and the district court’s approval) came from the testimony of two experts in the field of educational psychology. Both were of the opinion “that the challenged policy was significantly related to a teacher’s effectiveness and job performance [because] students in desegregated classes are likely to perceive rejection, and experience a sense of inferiority from a teacher whose own children attend a nearby racially segregated school, and [such students will] be inclined to perform at a lower educational level”. 365 F.Supp. at 860. Neither expert had evaluated plaintiffs individually. One had been director of a three-year project the aim of which was “to increase the interaction between the school and the community and the student and the teacher in public schools in Mississippi”. His investigation had included schools in Calhoun County, although not the Calhoun City Attendance Center at which plaintiffs taught. Both experts agreed that the Board policy was “reasonable”, based on psychological principles of “negative reinforcement” and “teacher expectation”. One of them explained:

A. Okay. The kind of thing that operates in a classroom is that a major variable in learning is how a teacher relates to a student. There is ample indication from both research, my own and others, and just observation on my part that a teacher who is perceived by students as rejecting the public school system will have a difficult time, for example, reinforcing the learning that would go on in the classroom. It would be a perception on the part of students of a difference from the students, and I think this would be particularly true with the black students.

Q. What would be the relationship of this rejection and perception to academic achievement?

A. The major thing is that a teacher is the major — or a major reinforcer of learning. And so that if there is a discrepancy in the way that a student — or let’s say if there is a negative perception on the part of the student of the teacher, this detracts from the teacher’s ability to reinforce learning.

Q. Now, by reinforcement, what are you speaking of in terms of this reinforcement?

A. It’s an operational principle in psychology that holds that a teacher, by such things as paying attention to students, showing respect, trust, acceptance has the potential for increasing or having a positive effect on learning.

Q. Is this what—

A. That’s basically what reinforcement is.

Q. Is this what educational psychologists would refer to as positive or negative social reinforcement?

A. Right.

Q. And what would be the effect of a negative social reinforcement?

A. The negative social reinforcement is shown in situations where the possibility exists for a teacher not having the potential or the possibility as a functional teacher to reinforce what goes on in an appropriate way in the classroom.

Q. Doctor Eicke, would a student perceive a teacher who sent their own children to a private school — a public school student, would this be perceived as a negative social reinforcement?

A. I think it would.

Q. Doctor Eicke, what do psychologists mean when they refer to teacher expectations?

A. Teacher expectation is an area that has been studied in educational psychology dealing with a phenomenon in which what is expected of students is what they tend to do. And my contention would be that if a teacher expected less from students that the students would tend to perform at a lower level; and conversely, if the teacher expected more, the students would tend to perform better. This need not be a conscious kind of thing. In fact, it usually isn’t. And I would think that a teacher that rejects the public school system as acceptable for [the teacher’s] own children would set lower expectations [for the public school students] that [the teacher] would then come in contact with.

He added that “[a]nything that detracts from a positive perception of [the] teacher may affect learning.” The other expert repeated and further explained similar opinions.

The district court found in this evidence a sufficient “rational relation” between the challenged policy and the goal of public school desegregation to answer plaintiffs’ equal protection objection. However, while apparently conceding that the Board’s policy infringed plaintiffs’ First Amendment rights, the court noted that those rights “may not be considered in isolation”, that they “must be applied in the light of the special circumstances of the environment of the particular case”,⁴ and that “where the exercise of First Amendment rights impairs the teacher’s effectiveness, or conflicts with the performance of her job, the school board may lawfully refuse to rehire the teacher”. After quoting from the Supreme Court’s opinion in Adler v. Board of Education,⁵ the court concluded:

It necessarily follows that if the board’s policy is a reasonable and constitutional regulation, plaintiffs may not complain of the consequence of not being rehired as public school teachers for having exercised their right to send their children to a private school.

The court evidently implied a finding that the policy was constitutional within its determination that the rational relation test had been met.

The Per Curiam opinion to this point was prepared by Judge CLARK. All members of the Panel concur in it. After extensive conference and individual judicial study of this obviously difficult case, our inability to agree on a unani mous opinion stems from our disagreement as to (1) whether the Judgment of the District Court should be affirmed and (2) the reasons for our individual conclusions. From this point forward the members of the Panel will state their views separately, with the result that the Judgment of the District Court will be affirmed.

SEPARATE VIEWS OF CIRCUIT JUDGE COLEMAN

With deference to the views of my Brothers, I vote to affirm the judgment of the District Court, but for reasons different to those there assigned. Under the authority of United Public Workers v. Mitchell and United States Civil Service Commission v. National Association of Letter Carriers, hereinafter cited, I would have dismissed the case for failure to raise a substantial constitutional question.

Quoting from Mitchell:

“Congress and the President are responsible for an efficient public service. If, in their judgment efficiency may be best obtained by prohibiting' active participation by classified employees in politics as party officers or workers, we [the Supreme Court] see no constitutional objection.”

United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), “unhesitatingly” reaffirmed in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).

In the latter case the Supreme Court held that neither the First Amendment nor any other provision of the Constitution invalidates a law barring the following customary and ordinary First Amendment rights of those not shouldered with the responsibilities of federal employment: (1) organizing a political party or club, (2) actively participating in fund-raising activities for a partisan candidate or a political party, (3) becoming a partisan candidate for, or campaigning for, an elective public office, (4) actively managing the campaign of a partisan candidate for public office, (5) initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office, and (6) serving as a delegate, alternate or proxy to a political party convention.

“But, as the Court held in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), the government has an interest in regulating the conduct and ‘the speech of its employees that differ[s] significantly from those it possesses in ‘connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public ' services it performs through its employees’.” 413 U.S. at 564, 93 S.Ct. at 2890.

“There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.” Ibid.

“Neither the right to associate nor the right to participate in political activities is absolute in any event [citations omitted].” 413 U.S. at 567, 93 S.Ct. at 2891.

The right of the teacher-appellants to send their children to a private school, whether grounded in the Constitution or not, is not at stake in this appeal. Nobody is contesting their primary right to do so.

No racial bias is involved. The teachers are white.

There is no Singleton issue in the failure to re-employ them; this was not a reduction in force prompted by an effort to achieve unitary status.

The teachers did not have tenure.

There is no contention that the school board policy was pretextual or sprang from anything other than complete good faith. It applied to all teachers who had educable children and some of them complied with it.

There is no substantial evidence of the existence of any valid educational factor available at the private school, not also available at the public school.

The case then boils down to this:

Under the facts of this case, does the United States Constitution deny a public school board the authority to adopt and uniformly enforce a policy clearly designed, in good faith, to insure the undivided dedication of its teachers (and the appearance of that dedication) to the public school function? Under the authorities above cited, I respond that it does not.

Actually, those of the general public, who pay the taxes, who keep the public school doors open, and who depend on those schools to educate their children, have a right to expect undivided teacher dedication, free of any real or apparent conflicts of interest.

Here, the teacher-appellants seek to defeat that public right by saying that because they have a right to send their children to private schools they also have the constitutionally guaranteed right to be employed in the public schools in defiance of the considered judgment of the school board that such a practice is not good for the schools which they have assumed an obligation to foster and maintain.

I simply do not believe that the Constitution may be stretched so far.

We are not here dealing in isolation with the rights of parents as to the education of their children. This is only a springboard from which teachers (who also happen to be parents) are trying to jump to the desired result. We are confronted with altogether different claims: we are asked to hold as a matter of constitutional law that they may command for themselves employment in a public agency in defiance of the declared public policy of that agency, a policy which could have no possible purpose other than to promote the unity of, and public confidence in, the public school system. In such a collision of interest, the asserted “parental right” must yield. On balance, concerned as we are with the general, discretionary power of school boards to manage public schools, the board policy should prevail and I see nothing in the Constitution to forbid it.

I stand on what the Supreme Court said in Adler v. Board of Education (1952), hereinabove cited, that persons employed or seeking employment in public schools have no right to do so on their own terms, that to maintain the integrity of public schools as part of an ordered society school authorities have the right and the duty to screen teachers in a relevant manner, not inconsistent with basic civil rights.

For these reasons, I vote to affirm the judgment of the District Court. In so doing I find no necessity to put a “desegregation” gloss on the decision.

SEPARATE VIEW OF CIRCUIT JUDGE RONEY

We are asked to review a judgment in favor of school authorities who were sued by three former teachers for reinstatement, back pay, and other relief on the ground that the teachers were not rehired for unconstitutional reasons. I would affirm the judgment of the district court on the particular facts of this case on a very narrow ground.

Mississippi teachers are nontenured. School authorities may refuse to rehire a teacher “without any reason at all.” Thompson v. Madison County Board of Education, 476 F.2d 676, 679 (5th Cir. 1973). They may not refuse to rehire them, however, for an unconstitutional reason. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Plaintiffs held one-year contracts which expired at the end of the school year. They were not discharged. They were, on the other hand, not rehired. The plaintiffs had the burden of proving that the action of the school authorities in failing to rehire them was unconstitutional. I think they failed in such proof. I would rest an affirmance on the findings of fact of the district judge as they apply to these individual plaintiffs.

The court found as a fact that the dominant, if not sole, reason why each plaintiff enrolled his or her children in Calhoun Academy was to avoid the desegregated school system. This finding is not clearly erroneous. The court accepted the evidence that this conduct significantly related to the effectiveness and job performance of the teachers. The successful operation of the public schools as a unitary system under court-ordered desegregation was seriously challenged by the existence and public support of Calhoun Academy. The court found, without dispute, that the failure to rehire these teachers by the school authorities was for no other purpose than to strengthen local support for the public schools and to effectively implement the court-ordered requirement to change from a dual segregated school system to a unitary nondiscriminatory system. Under these circumstances, I would affirm the district court’s conclusion that the school authorities acted within their discretionary authority.

Whether similar action would be valid under less compelling circumstances, we need not decide. Although it would have been preferable for the school board to treat each plaintiff individually, and although the evidence is somewhat general rather than specific, I think that the district court had a sufficient base to apply the general evidence to the individuals. It appears to me it did this in fact, if not by specific language, when it assessed the individual testimony as to the reasons each gave for placing the children in Calhoun Academy. I would not get to the question of the validity of the general policy unrelated to this specific case of court-ordered desegregation. This case, to me, does not have broad implications.

Footnotes

1

. Miss. Code Ann. Section 37-9-17 (1972). Mississippi does not provide tenure for public school teachers. See Jennings v. Meridian Municipal Separate School Dist., 337 F.Supp. 567 (S.D.Miss.1971), aff’d, 453 F.2d 413 (5th Cir. 1971).

2

. The letter, signed by an attorney in the Education Section on behalf of an Assistant Attorney General, read in pertinent part as follows:

Although the Department of Justice is authorized by law to render legal opinions only to the President and the heads of the executive departments, we also have the responsibility to enforce the court orders in this case. Those orders would certainly not preclude the school board from taking the action described in your letter. Indeed, as your letter correctly notes, the court, in its ruling from the bench on August 7, 1968, made several references to the board’s obligations to take “positive and affirmative steps.” As was pointed out by Chief Justice Berger [sic] in McDaniel v. Barresi, 402 U.S. 39, 41 [91 S.Ct. 1287, 28 L.Ed.2d 582] (1972), “school boards that operated dual school systems are charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” See also, Green v. County School Board, 391 U.S. 430, 437 — 438 [88 S.Ct. 1689, 20 L.Ed.2d 716] (1968).

The comments made above do not. purport to answer any “due process” or “First Amendment” issues which may be raised in this matter. We appreciate your interest in •writing this Department.

3

. In this connection we note that subsequent to the adoption of this policy and before these teachers were not reemployed the State of Mississippi enacted a statute that prohibits school board regulations denying employment or reemployment on the ground of nonenrollment of an eligible child in that public school system. Chapter 459, Laws of 1974. Since none have suggested that the statute should be given retroactive effect the validity of the statute is not before us.

4

. Quoting Clark v. Holmes, 474 F.2d 928, 931 (7th Cir., 1972).

5

. 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952).