Drake v. Covington County Board of Education

371 F. Supp. 974, 8 Fair Empl. Prac. Cas. (BNA) 168, 1974 U.S. Dist. LEXIS 12624, 8 Empl. Prac. Dec. (CCH) 9616

• Court: District Court, M.D. Alabama
• Decided: January 23, 1974
• Docket: Civ. A. 4144-N
• Status: Published

Opinions

OPINION

Before RIVES, Circuit Judge, and JOHNSON and VARNER, District Judges.

RIVES, Circuit Judge:

A teacher in the public schools of Alabama who has contracted and served in the same school system for three consecutive school years attains continuing service status, and has the right to be re-employed each succeeding school year¹ unless her contract is cancelled upon some ground provided in another section of the Alabama Code, which will be quoted later.

Plaintiff Drake, an elementary school teacher on continuing service status in the Covington County, Alabama, school system, seeks an injunction requiring the defendants to reinstate her to her former position as a school teacher in that system.

Drake received notice by letter dated April 27, 1973, that the Board of Education of Covington County proposed to cancel her employment contract for “immorality in that the Board has been presented with a physician’s certificate stating that you became pregnant during the current school year at which time you were a single unmarried person.” This letter informed Drake that she had a right under § 359 of Title 52 to request either a public or private hearing to contest the Board’s action. Drake timely requested a private hearing.

A hearing was held before the Board of Education on May 22, 1973. Drake was represented by counsel and record of the proceedings was made. Although the Board’s attorney offered the testimony of several witnesses concerning financial matters involving Drake, the Board properly refused to admit this evidence, and accepted testimony from a physician and from Drake herself. The doctor testified that tests indicated that Drake was pregnant. Drake admitted that she had engaged in sexual intercourse with her fiance in private on a number of occasions. Following a meeting of the Board in private session, the Chairman informed Drake that the Board had voted not to renew her contract.

Drake, through her attorney, pursued her statutory right to appeal to the Alabama State Tenure Commission.² A document dated June 13, 1973, indicates that the Commission met on that date to consider Drake’s case. After oral argument and a review of the record, the Commission sustained the validity of the action of the Covington County Board of Education.

Under Alabama law, Drake could have sought review of the action of the State Tenure Commission by petition for mandamus filed in the Circuit Court of Covington County.³ Instead, she filed a complaint in the United States District Court, alleging jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 2201, and 28 U.S.C. § 1343 as authorized by 42 U.S.C. § 1983.

The Supreme Court has stated that “[i]t is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492. Also see McNeese v. Board of Education, 1963, 373 U.S. 668, 671-676, 83 S.Ct. 1433, 10 L.Ed.2d 622. These cases indicate that Drake was entitled to choose a federal forum to litigate her constitutional claims.

The applicable section provides as follows:

“§ 358. Grounds for cancellation of employment contract. — Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in number of teaching positions, or other good and just cause; but cancellation may not be made for political or personal reasons.”

Tit. 52, Code of Alabama, 1940, Recompiled 1958. Drake claims the immorality provision of this section, which provided the statutory basis for her dismissal, is void for vagueness. She attacks the constitutionality of the statute both on its face and as applied to her. Following the example of the Supreme Court in Pickering v. Board of Education, 1968, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, we consider first her challenge to the statute as applied. We then find it unnecessary to reach her challenge to the statute on its face.⁴ We hold that the statute was applied in this case in a manner which violated Drake’s constitutional right of privacy.

The details of the application of the statute to Drake were not clear at the time of oral argument. A stipulation filed by the parties in response to a request by the Court for further factual information revealed the manner whereby the defendants learned about Drake’s claimed immorality:

“Defendant, Murray King, Covington County Superintendent of Education, would testify substantially that on, approximately, March 7, 1973, Mrs. Mary Gilmer, a bookkeeper for Covington County, told him she had heard a rumor that Miss llena Drake, an unmarried teacher in the Covington County School System, was a patient in Columbia General Hospital and was pregnant.

“The next day he called Dr. Evers, who runs that hospital, and asked him if it was true and Dr. Evers said it was. Dr. Evers told him that Miss Drake had asked him to do an abortion on her because she would lose her job if she had a baby. Dr. Evers said 'it had béen confirmed by x-rays by two doctors and also the laboratory tests done by a laboratory technician.

“On Friday, March 9, 1973, at approximately 11:00 A.M., Mr. King, accompanied by Mr. Ovid Sanders, Transportation Superintendent for Covington County Schools, visited Miss Drake at her room in the hospital. At that time Mr. King informed Miss Drake that her condition was known and he would have to submit it to the Board of Education whether she did or did not have an abortion.

******

“On Monday, March 12, 1973, Miss Drake called him at his office and said she had just been released from the hospital and that she was not pregnant at that time. On that day he (Mr. King) visited Dr. Evers at his office and Dr. Evers told him that he released Miss Drake on Saturday March 10, 1973, and she was still pregnant at that time.

“On Wednesday afternoon, March 21, 1973, Miss Drake visited my (Mr. King’s) office. She informed me that she had been to two other doctors and they had told her she was not pregnant. I told her that if she would give me the name of a doctor who would say she was not that would be the end of it. She told me she had been advised not to give me the name of the doctor. She had told me at that time also that Dr. Evers had told her she was two months pregnant and that her fiance had been gone for four months and she could not be less than four months pregnant. [Emphasis supplied.]

“On one other occasion before March 27, 1973, I again talked with Miss Drake and again told her if she would furnish me the name of the doctor who would say she was not pregnant and he verified this, the matter would be dropped. She again refused to give me the name. Dr. Evers had also given me the certificate which was introduced in evidence at the hearing before the Board.⁵

“I reported all of the above to the Board of Education at their regular meeting on March 27, 1973, and as far as I know, the members of the Board had no other information concerning this at that time.”

Following the clue indicated by the emphasized part of Mr. King’s testimony, the attorney for the Board elicited the following testimony on cross-examination of Drake.

“Q. Did you tell him [Mr. Murray King], in effect, that the doctor could not be correct, that you were two months pregnant because your fiance had been gone four months ?

“A. Right.

“Q. Did you mean by that that you had been having relations with your fiance up until he left ?

“A. I don’t think that’s ....

“MR. SEAY [Drake’s attorney]: Answer the question.

“A. Okay. Yes, I’m twenty-eight years old, and I don’t think the Board or anybody else can tell me what I can do with my private life.

“Q. Then you do acknowledge that you had sexual relations with this man while you were unmarried and while you were teaching here ?

“A. Sure.

“Q. Will you tell us where those relations took place ?

“A. Well, I have never been inside of a hotel.

“Q. Where do you recall different times that it took place ?

“A. Mostly in his car.

“Q. Have you also had relations with any other man?

“A. No.”

(Record pp. 18-19.)

The record and stipulation permit no other conclusion than that all of the evidence, upon which the Board based its cancellation of Drake’s employment contract had its source in disclosures from her own physician solicited by Superintendent King. The evidence fails to show that Drake consented for her doctor to disclose to the Board her private communications with him.⁶

In a closely related context, the Supreme Court has recently discussed the constitutional right of privacy:

“The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, [11 S.Ct. 1000, 1001, 35 L.Ed. 734] (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have indeed found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, [89 S.Ct. 1243, 1247, 22 L.Ed.2d 542] (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, [88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889] (1968), Katz v. United States, 389 U.S. 347, 350, [88 S.Ct. 507, 510, 19 L.Ed.2d 576] (1967), Boyd v. United States, 116 U.S. 616, [6 S.Ct. 524, 29 L.Ed. 746] (1886), see Olmstead v. United States, 277 U.S. 438, 478, [48 S.Ct. 564, 572, 72 L.Ed. 944] (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. [479], at 484-485, [85 S.Ct. 1678, 1681-1682, 14 L.Ed.2d 510]; in the Ninth Amendment, id., at 486, [85 S.Ct. at 1682, 14 L.Ed.2d 510] (Goldberg, J., concurring) ; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923). These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325, [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, [62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655] (1942), contraception, Eisenstadt v. Baird, 405 U.S. [438], 453-454, [92 S.Ct. 1029, 1038-1039, 31 L.Ed.2d 349] (1972); id., at 460, 463-465, [92 S.Ct. at 1042, 1043-1044] (White, J., concurring in result), family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944), and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925), Meyer v. Nebraska, supra.

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Roe v. Wade, 1973, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147.

The Court has also recently declined to restrict the right of privacy in sexual matters to married couples:

“If under Griswold [381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510] the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Eisenstadt v. Baird, 1972, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349.

The Board made no finding that Drake’s claimed immorality had affected her competency or fitness as a teacher, and no such nexus was developed in the evidence. No “compelling interest” as to the cancellation vel non of Drake’s contract of employment was established by the evidence which would justify the invasion of Drake’s constitutional right of privacy. Under the testimony that Drake was in the early months of pregnancy, she in consultation with her physician would be free to determine, without regulation by the State, whether pregnancy should be terminated. Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. 705, 35 L.Ed.2d 147. For the State, in the absence of any compelling interest, to base cancellation of Drake’s employment contract on evidence growing out of her consultations with her physician was, in our opinion, an unconstitutional invasion of her right of privacy. In this case the immorality provision of section 358 of Title 52, Code of Alabama was applied to Drake in a manner which invaded her constitutional right of privacy.

VARNER, J., dissents in accordance with opinion attached.

1 . Sections 351 and 352 of Title 52, Code of Alabama, 1940, Recompiled 1958.

2 . See Title 52, § 360.

3 . Title 52, § 361: “The action of the state tenure commission in reviewing transfers of teachers or cancellation of teacher contracts, if made in compliance with the provisions of this chapter, ahd unless unjust, shall be final and conclusive. Whether such action complies with the provisions of this chapter and whether such action is unjust, may be reviewed by petition for mandamus filed in the circuit court of the county where said school system is located.”

4 . In Pickering v. Board of Education, 3968, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, the appellant claimed that the Illinois statute permitting his dismissal on the facts of the case was unconstitutional as applied under the First and Fourteenth Amendments. Appellant also challenged the statutory standard on which the Board based his dismissal as vague and overbroad. The Supreme Court commented in a footnote that because of its disposition of the ease, “we do not reach appellant’s challenge to the statute on its face.”

The Supreme Court provides no explanation in Pickering of its decision to consider, first, appellant’s challenge to the statute as applied. Possibly a number of considerations influenced the Court. A finding of “unconstitutional as applied” is a narrower ground of decision than “facial unconstitutionality.” It leaves the statute on the books, and allows the state a chance to attempt to apply the statute in a constitutional manner, and/or to secure a limiting construction from the highest state court. (The federal court is less free to construe state statutes.) See Coates v. City of Cincinnati, 1971, 402 U.S. 611 at 616-617, 91 S.Ct. 1686, 29 L.Ed.2d 214 (Black, J., separate opinion) and 402 U.S. at 617ff, 91 S.Ct. 1686, 29 L.Ed.2d 214 (White, J., dissenting) for expressions of judicial reluctance to invalidate a statute on its face. Also, see Broadrick v. Oklahoma, 1973, 413 U.S. 601, especially at 615-16, 93 S.Ct. 2908, 37 L.Ed.2d 830.

5 . The doctor’s certificate reads:

“TO WHOM IT MAY OONCEB [sic] :

“This is to certify that llena Drake is pregnant as shown by a pregnancy test, and physical examination.

“Signed Ray Evers

Ray Evers, M.D.1

6 . On cross-examination of the doctor in the hearing before the Board, Drake’s attorney made an unsuccessful attempt to show his part in reporting the pregnancy:

“Q. Did you report this pregnancy to the superintendent?

“MR. TIPLER: We object to that.

“THE CHAIRMAN: Objection sustained.

“MR. SEAY: May we have an exception?”

(Hearing Exhibit IV to Stipulation, p. 7.)

Drake’s attorney may be excused from further attempts to explore the source of the report of her pregnancy.

In any event, the formal, technical rules of evidence in force in the ordinary judiciary system are not, generally speaking, applicable in administrative tribunals either federal or state. Gagnon v. Scarpelli, 1973, 411 U.S. 778, 786, 787, 789, 93 S.Ct. 1756, 36 L.Ed.2d 656; Wigmore on Evidence, 3rd ed. § 4a-§ 4c; Davis Administrative Daw Treatise, Chapter 14.