The opinion
SIMEONE, Judge
(concurring).
I concur in the result reached by the majority in holding that the findings and decision of the Board terminating the employment of the appellants are supported by competent and substantial evidence. To reach this conclusion has been, for me, an agonizing struggle, for involved is the delicate balancing of the tenure rights of teachers in a secondary school and the right of the school board to control the operation of a school so that the educational process, so vital to our society, may be carried on in the quiet and harmony essential to learning.
Intertwined and implicit in this proceeding, although not primarily in issue and not raised, is the right of faculty and students to exercise their constitutional rights of free expression.
There are certain basics. Our review is limited; limited to a determination of whether the findings and the decision of the Board to terminate appellants’ services are supported by competent and substantial evidence upon the whole record. School boards have the power to exercise their judgment and discretion in matters affecting school management and a court may not interfere unless the Board exercises such powers in an unreasonable, arbitrary, capricious or unlawful manner. Magenheim v. Board of Education, 347 S.W.2d 409, 417 (Mo.App.1961). As the majority opinion correctly points out, we may not substitute our judgment for that of the Board and we may not set aside its findings and judgment unless there is no substantial evidence for it to reach the conclusion it did. The Board has broad discretion to make decisions but that discretion is not unbounded. Standards and good reasons exist to control unbounded authority.
While not precisely in issue in this proceeding, it is now settled that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either *12 students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 , 89 S.Ct. 733, 736 , 21 L.Ed.2d 731 (1969); Vail v. Board of Education of Portsmouth School Dist., 354 F.Supp. 592, 597 (D.N.H.1973). But these rights, like all in the law, are not absolute and “the [Supreme] Court has repeatedly emphasized the need for affirming the comprehensive authority of . school officials, ... to prescribe and control conduct in the schools.” Tinker, supra 393 U.S. at 507 , 89 S.Ct. at 737 . There are times when, and there are reasons why, a Board may restrict these freedoms.
The precise issue here is the right of the School Board to terminate the services of tenured teachers. That right is undoubted provided the termination falls within the ambit of the law, is reasonable, procedural due process is afforded and is for good cause. See cases collected in Annot., 4 A. L.R.3d 1090 (1965); § 168.221, RSMo 1969, V.A.M.S. and Regulations of the Department of Instruction, St. Louis Public Schools, Secondary Division (1968), Rules 2.330, 3.100 and 3.240. Innumerable decisions have upheld the right of a board to terminate the services of a teacher in both secondary and college institutions for good and sufficient cause. And a faculty advis- or may be held responsible for the activities of the students under his supervision. Jergeson v. Board of Trustees of School Dist. No. 7, 476 P.2d 481 (Wyo.1970). Passive neglect as well as affirmative misfeasance may be sufficient to hold the ad-visor or sponsor responsible.
Under this record and the facts, the Board had reason to take steps in 1970 to minimize the possibility of new discord in a troubled school. And under this record, there was sufficient and competent evidence to substantiate the charges and the termination of the services of the appellants. No one denies that appellants were sponsors and faculty advisors. Appellants were instructed in 1970 not to present a program similar to the one in 1969. There was sufficient evidence for the Board to reach the conclusion that appellants permitted the development of the 1970 presentation in disregard of instructions to avoid repetition of the earlier program. This notwithstanding the fact that Mr. Nelson permitted the presentation after having been told that the students would “clean up” the program. While there may be differences of opinion on the obscene or disruptive nature of the program, determination had to be made by the Board in the context of the situation and such judgment was made by the Board. There is evidence that appellants knew of the program by February 3 or 4 and knew of the program at the time of the rehearsal or preview on February 6, 1970. Appellants, charged with the responsibility as sponsors, were under directions of the school authorities not to put on a similar program, and by reason of the February 6 rehearsal they knew that the same type of presentation was planned.
While there is, of course, a legitimate place in our schools for free academic expression and dramatizations of historical and contemporary events, and dramatizations of the culture and proud heritage of any ethnic group, as a part of the learning process, expressions or dramatizations, or their method of exercise cannot be disruptive or materially interfere with the legitimate educational endeavors.
Teachers are unique in society. A teacher works in a sensitive area; in his environment he shapes the attitudes of young people toward the society in which they live. He is afforded special privileges —academic freedom and academic tenure. But he also bears responsibilities. And within definite bounds, he is subject to certain reasonable controls of the Board by whom he is employed, which has the responsibility of providing a good education for all young people within its jurisdiction.
The Board held a lengthy hearing. Appellants were afforded procedural due *13 process. The Board exercised its judgment to terminate the services of the appellants by a unanimous vote. I believe that the judgment of the members of the Board was supported by competent and substantial evidence on the whole record.
I therefore concur in the result reached by the majority.