# Stewart v. Bailey

> Court of Appeals for the Fifth Circuit · July 22, 1977 · 556 F.2d 281

URL: https://www.frixlaw.com/law-library/cases/8902211

## Case

- **Full name:** Walter F. STEWART v. James C. BAILEY, Individually and as Director of the George C. Wallace Technical Community College, and LeRoy Brown, Individually and as State Superintendent of Education
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 22, 1977
- **Citations:** 556 F.2d 281
- **Precedential status:** Published
- **Opinion:** Dissent by Goldberg
- **Judges:** Goldberg, Hill, Kerr
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8902211

## How later opinions describe it (automated extraction)

- describing "four requirements necessary to afford minimal due process to a teacher"

## Opinion text

GOLDBERG, Circuit Judge,
dissenting:
The George C. Wallace Technical Community College fired appellant Walter F. Stewart from his job as a teacher. He challenges the firing on procedural due process and first amendment grounds. The district court rejected the procedural due process claim, finding that Stewart knowingly and intelligently waived his right to a hearing. I agree with the majority that that finding is not clearly erroneous. The district court failed to adjudicate the first amendment claim, apparently believing that a procedurally impeccable firing could not possibly violate the first amendment. That view is obviously wrong. I would reverse.
Taking a different tack from the trial court, the majority rejects the first amendment claim upon finding insufficient evidence that Stewart’s firing was based on the exercise of protected rights. The lack of evidence is hardly surprising; the district court refused to hear any evidence on the issue. 1 This refusal to hear first amendment evidence was tantamount to a holding that the complaint failed to state a first amendment claim.
I believe the complaint does state a first amendment claim. As noted in the complaint, the letter informing Stewart of his dismissal listed as one ground his criticism of State Board of Education policies. A dismissal even partially based on the exercise of first amendment rights is unconstitutional. Although a teacher’s criticism of his superiors is by no means protected under all circumstances, Stewart’s allegations are clearly sufficient to withstand a motion to dismiss. 2 See generally Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968).
Unless we are to hold with the district court that a state may trample first amendment rights so long as it complies with procedural niceties, we must reverse this judgment. A state should not be allowed to deny free speech with or without a hearing. This proposition is too clear for argument. I cannot say with assurance that Stewart would be unable to prove his claim if allowed to present his evidence. Because we do not ordinarily uphold judgments on the basis of a guess as to what the facts might show if a trial were held, we should send the first amendment claim back for trial. 3 I respectfully dissent.
. The only hearing began as a preliminary injunction hearing. Stewart points to two instances when the district court limited the evidence, one affecting each party. The record demonstrates a general understanding that only procedural issues were under consideration; the parties were not to address the first amendment claim. Near the conclusion of the hearing, the court announced that it was consolidating the trial on the merits with the preliminary injunction hearing under Fed.R.Civ.P. 65(a)(2). Stewart’s counsel said he had no objection “so long as everybody understands really what we are talking about here are the procedural aspects of this firing and not, of course, whether or not there’s any good cause.” While the record is less than completely clear, I believe the district court prevented Stewart from trying his first amendment claim.
. The record contains no indication of what “Board of Education policies” Stewart criticized.
. No one has suggested that Stewart should be foreclosed from litigating his claim because he failed to exhaust administrative remedies. Even if exhaustion were ordinarily required for § 1983 claims — which it is not — exhaustion should not be required when the state has established no administrative procedures, as was the case here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8902211. Public record. Not legal advice.