The opinion
KILEY, Circuit Judge
(concurring).
I concur in the court’s opinion, but with reservations.
I take it that the district court’s opinion, though expressed otherwise, is that the plaintiff had failed to prove to the court’s satisfaction that plaintiff was discharged for his union activities and consequently not in violation of his First *46 Amendment right to freedom of association. I concur in our court’s opinion because I think that the district court's inference was justified by the record.
I decline to approve any implication, if any there be in the opinion, that a school board’s good faith judgment in terminating a counselor’s employment is per se justified, even though the termination violates a constitutional right. Furthermore, I would not approve an implication that a school board’s good faith adoption of a principal’s recommendation based on arbitrary or unconstitutional grounds would be justified.
This court’s references to plaintiff’s “duties” imply that plaintiff had an obligation not arising from his employment contract, but from the circumstances under which the defendant board was operating at the time the counselors and teachers were being asked to cooperate. I reserve judgment as to whether plaintiff had “duties.”
I am not clear as to what “self-direction” — as a reason for termination of employment — means in the context of this case, although I think that the record here does support a finding that plaintiff did not cooperate. However, it is my view that during a probationary period a school board is not limited in its determination that a counselor has proven his worth — before achieving tenure — to the school system by a showing of mere competence as counselor. Beyond competence and contractual duties there is a grey area in which the board should have discretion to determine that a technically competent teacher or counselor may nevertheless not be suitable for the school system. Insistence of a school board in this grey area upon complete unquestioning cooperation and compliance could have a suffocating, repressive effect upon the quality of the school system, yet only in the most extreme eases, in my opinion, would courts be justified in finding an abuse of board discretion. The defendant board members are selected by the residents of the community, and the community will get the school system that the members it elects provide.