in holding that the State violated plaintiff’s constitutional right of privacy by basing cancellation of her employment contract on evidence of her unwed pregnancy which was derived from her private communications with her physician, the Court cited Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) as authority for opining that “The [Supreme] Court has also recently declined to restrict the right of privacy in sexual matters to married couples. ...” Id.
How later courts described this case
- in holding that the State violated plaintiff’s constitutional right of privacy by basing cancellation of her employment contract on evidence of her unwed pregnancy which was derived from her private communications with her physician, the Court cited Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) as authority for opining that “The [Supreme] Court has also recently declined to restrict the right of privacy in sexual matters to married couples. ...” Id.
- state violated plaintiff’s constitutional right of privacy by basing cancellation of employment contract on evidence of her unwed pregnancy
- employer could not dismiss unmarried, pregnant teacher for immorality; her conduct did not affect her competency or fitness as a teacher
- unmarried teacher could not be fired for first trimester abortion
Written by the judges who cited it.
The opinion
VARNER, District Judge
(dissenting).
I respectfully dissent from the conclusion of my brothers that Miss Drake is entitled to reinstatement as a public school teacher. I cannot agree that Miss Drake, at the time of her hearing, a public school teacher whose morals were street talk in Florala, had any remaining right of privacy. If she had such a right, I think it was subrogated to a strong and compelling State interest in the morality of the State’s public school system itself.
Miss Drake, after full administrative hearings, was discharged by the Defendant Board of Education pursuant to the provisions of Code of Alabama, Title 52, § 358. 1 She was specifically charged with being pregnant without benefit of marriage pursuant to the term “immorality” in the statute. We are asked to make private a matter publicized by the very nature of the public interest in the public employment of one who asserts her private rights.
In the instant case, there was evidence from which the Board may have found that Miss Drake was immoral and that such conduct interfered with her teaching ability. The Board found her guilty of “immorality”, in the word used by the statute without specifying whether it implicitly found a nexus with her teaching ability. Her claim that her sexual conduct was private paled when she admitted that it was publicly discussed in Florala. Rumor of immorality of a public schoolteacher in a small town travels fast and has a larger impact on the educational process than in a city. It is difficult to see how a Court can require of a Board composed of laymen the niceties of charging and making specific findings of everything that may be required in the way of constitutional niceties, particularly when those requisites are not called to their attention. Rather, it seems more appropriate to me that the Plaintiff, having the burden of *982 proof, 2 should be required to prove that her discharge was constitutionally defective. The technical defect, right of privacy, on which the majority relies, was not pointed out so that the Board might call for and specifically consider evidence thereof at the time of the hearing. It is difficult for this Court to learn from the evidence how Miss Drake’s secret first became a public rumor associated with a public figure. It is enough to interfere with operation of a school system that it did.
I, therefore, cannot say that the Board’s failure to specifically find that her right of privacy was not invaded was fatal. It seems to me that this Court should presume the propriety of the Board’s finding of immorality in the absence of the Plaintiff’s establishing that some element thereof was not proved. To require compliance to specific constitutional language by a lay board is, to me, a technical exercise in futility. Plaintiff has alleged that the “immorality” clause of the State Tenure Act is unconstitutional on its face and as applied to her and that her right of privacy was violated. In my judgment, she failed to prove these allegations. For aught that appears in the record, the statute was constitutionally construed and applied, and the right of privacy, if it existed, was subrogated to a compelling State interest. This Court has no duty to presume the impropriety of the action of a lesser court or administrative body until the impropriety thereof is clearly established by the evidence. United States ex rel Harris v. Ragen, 177 F.2d 303 (7 C.C.R.); Panhandle E. Pipeline Co. v. F.P.C., 179 F.2d 896 (8 C.C.A.); see Modern Fed. Prac.Dig., Adm.Law, Key No. 499.
RIGHT OF PRIVACY
Miss Drake insists, and my brothers agree, that the whole proceeding invaded her constitutional right of privacy and that her release from duty was, therefore, impermissible.
Speaking of the right of privacy in this State, the Supreme Court of Alabama in Smith, et al v. Doss, 251 Ala. 250 , 37 So.2d 118 , stated the following:
“[1] The general nature of the right of privacy is described in 41 Am.Jur. p. 925. It has been defined ‘as the right of a person to be free from unwarranted publicity’ or ‘the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ 41 Am.Jur. p. 925; 54 C.J. p. 816. Its violation is a tort. * * *
Dean Pound wrote in 1915 in 28 Har. Law Rev. 362, ‘[ujnwanted and unsolicited publicity with respect to private matters of purely personal concern is an injury to personality. It impairs the mental peace and comfort of the individual and may produce suffering much more acute than that produced by a merely bodily injury. A man’s feelings are as much a part of his personality as his limbs.’
“[2,3] But there is a conflicting principle in that the ‘white light of publicity safeguards the public’ and ‘free disclosure of truth is the best protection against tyranny.’ ‘Frequently the public has an interest in an individual which transcends his right to be let alone’ and ‘since the whole is greater than its component parts, private rights must often yield to public interest.’ Michigan Law Review, Vol. 39, p. 526. The right of privacy ‘ * * * does not exist * * * in connection with the life of a person in whom the public has a *983 rightful interest, nor where the information would be of public benefit.’ ”
The Supreme Court in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 , and in Doe v. Bolton, 410 U.S. 179 , 93 S.Ct. 739 , 35 L.Ed.2d 201 , held the Texas and Georgia criminal abortion statutes unconstitutional as applied on the ground that a pregnant woman has a right of privacy, broad enough to encompass a woman’s decision whether or not to terminate her pregnancy, Roe v. Wade, supra, 410 U.S. at page 154 , 93 S.Ct. 705 , 35 L.Ed.2d 147 , but that this right of privacy is subject to State regulations and must be weighed against important or compelling State interests (410 U.S. at page 154, 93 S.Ct. 705 , 35 L.Ed.2d 147 ). The Court articulated as follows:
“Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling State interest,’ Kramer v. Union Free School District, 395 U.S. 621, 627 , 89 S.Ct. 1886 [1890], 23 L.Ed.2d 583 (1969) ; Shapiro v. Thompson, 394 U.S. 618, 634 , 89 S.Ct. 1322 [1331], 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406 , 83 S.Ct. 1790 [1795], 10 L.Ed.2d 965 (1963);” Roe v. Wade, supra, 410 U.S. at page 155 , 93 S.Ct. at page 728 .
The Court further recognized the following:
“At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” Roe v. Wade, supra, 410 U.S. at 154 , 93 S.Ct. at 727 .
While the State interests, referred to in Roe , in preserving and protecting the health of the pregnant woman and in protecting potential life were not, within themselves, compelling in the early stage of pregnancy found to exist in the instant case, the State has a strong interest in the sanctity of the educational process and, therefore, the effectiveness of each teacher.
“The teacher is entrusted with the custody of children and their high preparation for useful life. His habits, his speech, his good name, his cleanliness, the wisdom and propriety of his unofficial utterances, his associations, all are involved. His ability to inspire children and to govern them, his power as a teacher, and the character for which he stands are matters of major concern in a teacher’s selection and retention.” Goldsmith v. Board of Education, 66 Cal.App. 157, 168 , 225 P. 783, 787 ; Board of Education v. Swan, 41 Cal.2d 546, 553-554 , 261 P.2d 261 . See Moser v. State Board of Education, 22 Cal.App.3d 988 , 101 Cal.Rep. 86.
Obviously, there is a strong public interest in elimination of unfit schoolteachers. Beilan v. Board of Education, 357 U.S. 399, 406-408 , 78 S.Ct. 1317 , 2 L.Ed.2d 1414 ; Adler v. Board of Education, 342 U.S. 485, 493 , 72 S.Ct. 380 , 96 L.Ed. 517 . The problems associated with unmarried women who have become pregnant and seek abortions is commonly known and is demonstrated in both the Doe and the Roe cases by the fact that the women involved were allowed to prosecute their cases in assumed names. The loss by a teacher of the respect of her students associated with her known pregnancy without marriage is, in my judgment, so obviously a deterrent to the teaching ability of such a teacher as to be within the judicial knowledge of this Court. The Board of Education must have known that Miss Drake would have encountered grave problems. In my judgment, there was and is a compelling State interest justifying termination of Miss Drake’s employment under the circumstances.
As long as a public schoolteacher’s affairs are private, they are protected from invasion by the right of privacy. Such an invasion is an invasion of a constitutional right and affords a cause for bringing suit in tort against him who invades the right. See Smith v. Doss, (1948), 251 Ala. 250 , 37 So.2d 118 , citing with approval Cason v. Baskin, et al, *984 155 Fla. 198 , 20 So.2d 243 , 168 A.L.R. 430 . However, once the private affairs, whether good or bad, of a public schoolteacher become public and by whatever means, they reflect upon the school system itself. They interfere with teacher efficiency and justify application of the rules: (1) that there is a compelling “public interest in eliminating of unfit schoolteachers”, Beilan v. Board of Education, supra; and (2) that the right of privacy “does not exist * * * in connection with * * * a person in whom the public has a rightful interest * * Smith, et al v. Doss, supra. The effectiveness of the school system must not be subjugated to the rights of one teacher. Her remedies, if any, lie in other proceedings.
Several Circuit Courts have reviewed administrative discharges for immorality or related causes. The District of Columbia Circuit, in overruling a discharge by the Civil Service Commission for immorality (over Judge Tamm’s dissent) in Norton v. Macy, 135 U.S.App.D.C. 214 , 417 F.2d 1161, 1167 , after recognizing reluctance at overruling an administrative discharge, stated:
“A reviewing court must at least be able to discern some reasonably foreseeable, specific connection between an employee’s potentially embarrassing conduct and the efficiency of the service.”
Surely problems, associated with loss of the students’ respect because of public knowledge of the pregnancy, are reasonably foreseeable and have a specific connection with the efficiency of the edueational program. See also Anonymous v. Macy, 398 F.2d 317 (5 C.C.A.1968), in which the Fifth Circuit made short work of affirming Judge Grooms’ opinion and said:
“Counsel for appellant, * * * argue * * * that homosexual acts constitute private acts upon the part of such employees, that they do not affect the efficiency of the service, and should not be the basis of discharge. That contention is not accepted by this Court. See Hargett v. Summerfield, 100 U.S.App.D.C. 85 , 243 F.2d 29 (1957).”
Miss Drake admitted at the original hearing that this matter was talked all over the streets of Florala. Her effectiveness as a public schoolteacher would, obviously, have been thereby curtailed.
I cannot agree with my esteemed Brothers that “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.” There is no showing that this talk was limited to the discussion by the Board of Education or its members. A bookkeeper for the county first heard and reported the rumor to Superintendent King on March 7. The fact that the “rumor”, as early as March 7, was widely enough spread to have reached the Superintendent and was confirmed by the doctor, 3 considered along with Miss Drake’s admissions that her reputation was publicly discussed, was ample evidence to support a conclusion by the Board that Miss Drake’s privacy was de *985 mised before it was conceived as a. theory in this case. I would hold, therefore, that, because of the publicity, as well as the public interest, obviously associated with Miss Drake at the time of the hearing before the Board of Education, Miss Drake had no privacy and, therefore, had no right to privacy.
There is a strong and compelling State interest that a county superintendent of education investigate rumors which may affect teacher efficiency and, upon confirmation thereof, report it to his board of education. The Board then has a duty to determine whether the infraction, if any, interferes with the educational process and the degree of punishment necessary to correct the interference, if any.
I, therefore, respectfully dissent.
. § 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.
. Brooks v. School District of City of Moberly, Mo., 8 Cir., 267 F.2d 733 , cert. den. 361 U.S. 894 , 80 S.Ct. 196 , 4 L.Ed.2d 151 ; Buford v. Morgantown City Board of Education, D.C.N.C., 244 F.Supp. 437 .
. In Alabama, a doctor has no legal privilege as to communications with his patient. Horne v. Patton, Ala., 287 So.2d 824 (1973) ; Gullege v. Mitchel, 242 Ala. 342 , 6 So.2d 22 ; Dyer v. State, 241 Ala. 679 , 4 So.2d 311 ; Beecher v. State, 288 Ala. 1 , 256 So.2d 154, 164 , reversed on other grounds 408 U.S. 234 , 92 S.Ct. 2282 , 33 L.Ed.2d 317 . If he wrongfully violates the Hippocratic Oath or any rule of ethics in responding to inquiries about a public rumor concerning a public schoolteacher laden with the public interest, the law would provide a remedy exclusive of interfering with the educational process. Horne v. Patton, supra. The Court in Horne states a new rule in Alabama as follows:
“It is thus that it must be concluded that a medical doctor is under a general duty -not to make extra-judicial disclosures of information acquired in the course of the doctor-patient relationship and that a breach of that duty will give rise to a cause of action. It is, of course, recognized that this duty is subject to exceptions prompted by the supervening interests of society, as well as the private interests of the patient himself.”