The opinion
JOHN R. BROWN, Circuit Judge
(concurring):
In joining in the affirmance, I would emphasize two things about the Court’s decision. First, though the Superintendent may have broad discretion in recommending or refusing to recommend a teacher for employment by the Board, the Court recognizes that this discretion does not prevent judicial inquiry into the constitutional propriety of his motives in refusing to recommend Plaintiff. See Hornsby v. Allen, 5 Cir., 1964, 326 F.2d 605 , rehearing denied, 330 F.2d 55 . Discretion gives much power, but this power may never be used to interfere with, or discourage, the exercise of federally guaranteed civil rights including the right to persuade or encourage others in the exercise of their civil rights. United States v. Bruce, 5 Cir., 1965, 353 F.2d 474 [Nov. 16, 1965] ; see United States v. Board of Educ. of Greene County, Miss., 5 Cir., 1964, 332 F.2d 40 . Second, though a teacher’s husband’s criminal record and involvement in litigation undoubtedly in many cases may justify a refusal to recommend her for this sensitive employment, if in fact such a record and such involvement spring wholly from attempts by him to exercise these broadly defined civil rights, then under such circumstances these considerations would not justify a refusal to recommend either under the exercise of —or the guise of exercising — such discretion.
The Court affirms because the Plaintiff failed to prove either that the Superintendent’s refusal to recommend her was based on the civil rights activity of her or her husband, or that her husband’s criminal record, which the Superintendent did consider, arose primarily from constitutionally protected assertions of civil rights.