# Respondents Brief — Watts v. Seward School Bd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1116%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1968 - **Citation:** 391 U.S. 592 ## Text ea? ~ Seu" ERRATA | : Table of Contents, line 5, change “Overboard” | to “Overbroad”; and line- 32, change “Rpter. ” to “Rptr.”. . Page 2, first full paragraph, line 4, change “and” to “an”. broad! 4, first full Paragraph, line 6, change “evetoonsst” to “over- Page 9, third p = a line 2, after “conduct” and before “may” ‘insert phic age 10, second full paragraph, tes 4, change e “petitioner” to ipa tidners”; ‘line 5, change “petitioner ’s” to “petitioners’ ”; and line 9 after “criticize” and before “its” insert the following: “public officials and not with a state’s power to dismiss”. Page 12; first full paragraph, line 3, delete “legislative”. & hn Bae 13, second full peragearh. line 20, — “ligitamate” to 10. “legitim Page 1 15 second full paragraph, line 11, chuinge “Counsel” to “ ounc Page .21, third -full -paragraph, 4, change “innocous” to. “innocuous” and line 6, change “Court” te to “court”. — Page 22, first full paragraph, line 1, change “overboard” to “overbroad”: and line 4, change “overboard” to “overbroad”. TABLE OF CONTENTS _ Statement of Facts : ei _ Summary of Argument ) Se aoe ae —- bara ae I. The' Statute Under Which Petitioners Were Nonre-. ‘ tained Was Neither. Vague-nor Overboard ...:............ ae Sean A. The Statute was not the Kind of Statute that os Would be Subject to the Objection of Overbreadth 6 B. The Statute was not Void for Vagueness . cveseseceemeese 8 II. Petitioners’. Nonretention. Pursuant to os Statute was Valid 10 A. The Appropriate Standard of Review is Whether | . There is Evidence in the Record Which Rationally Ve oo _Justifies a Finding.of Good Cause .......: -) 10 B. Petitioners’ Dismissal. was Justified by School — Board Interests Whick were both Reasonable and - Compelling Te III. Petitioners’ Nonretention for Substantial aichiconnpl- Se _ ance with School Board — E-7° was Valid - 18 | - Conclusion ......:...4 co a ratty : of we TABLE OF AUTHORITIES * ' CASEs: Appeal of Sullivdn County Joint School: Ba., 410 Pa: “222, 189 A:2d 249 (1963) . sai ll - Bagley v. Washington Township Hosp. Dist., 65 Cal. 2d 499, . 55 Cal. Rptr. 401, 421 P.2d 409 (1966) .. omg SY _ Beilan v. Board of Pub. Educ., 357 U.S. 399, (1958) ...............5, 8, 11 Board of Educ. v. Swan, 41 Cal. 2d 546, 261 P.2d 261 (1953), ae cert. denied, 347, U.S. 937 (1954) ; a ' Cox v. Louisiana, 379 U.S. 536 (1965) ; etme: a Cramp v. Board of Pub. Instruction, 368 U.S. 278, (1961) . - 5° Ex parte Curtis, 106 U.S. 371 (1882) .............. ances 14, 16 Fort v. Civil Serv. Comm’n, 61 Cal. 2d $31, Roser. A a + $92 P.2d 385.-(1964) ....- 6, 18, 14, 16 Henry v. Mississippi, 379 US. 443, (1965) .. bid —— Houston v. United States, 297 F.2d 838 (Ct. Cl: 1962) : . : Hunter v. Board of Educ., 265 Ky. 162, 96 sake 265, endl ea Table of Authorities Continued e Pa ' Jepsen v.Board of Educ., 19 ™ “AP. ‘24 2044158 N. E.2d 417, | (1958) ° : 19 Jordan v. State Bd. of Ins., 334 S.W. 2d 278 (Tex, 1960)... 7 ‘Keytshian, v. Board of Regents, 385 U.S. 589 (1967) ............ 10. Konigsberg v. State Bar of Calif. 368 U:S. 36: (1961) ...... os 0,01 Minielly v. State, 242 Ore. 490, 411 P.2d 69 (1966) ................. 13 N,A.A.C.P. v. Button, 371 U.S..415 (1963) ° - 9 | New York Times v. Sullivan, 876 U.S. 254 (1964) 00° 10 Parks v. Brown, 368 P.2d 220 (Alaska 1962) .. ine ~. a Pollastrine v. Severance, 375 P.2d 528 (Alaska 1962) -........ 20 Sanuita v. Common Laborers’ Union, 402 P.2d 199: — . 1965) - 20 -Schware v. Board of Bar Examiners, 353 U. S. 232 ~4?. . (1957) ne om 10, 11, Speiser v. Randall, 357.U.S: 513 (1958) .. : 9 United Pub. Workers of America v. Mitchell, 330 US. 75 J (1947) 10, 12, 14, 15 _” United States vu. Robel, —US.-, 88 Sup. Ct. 419, (1967) ........ Ae Walker v. City of Birmingham, 388 U.S. 307 (1967) ............ 16 | Watts v. Seward School Bd., 421 P. 2d 586, ‘(Alaska 1966) : 5, 18, 20, 22 Watts v. Seward School Bd., 423 P.2d 678 (Alaska 1967) ........ Gon ae Wolfe v. North Cerolina, 364 U.S. 177 (1960) ...... oa ae .Wood v. Georgia, 370 U.S. 375 (1962) jena (17 ’ Yakus v. United States, 321 US. 414 (1944) .. . ae _ STATUTES 7 5 USCA. $7501 (a) (1967) ‘87 5 U'S.C.A. §7512 (1967) .......- . aa of S.L.A. 1957, Ch. 71 §1 ..... - 7 +. " . §JL.A..1957, Ch. 71: $2 ...:. ; 2S .. Seward School Board Regulation E-9 19 Seward School Board. bet err “si Cahaiionees $, 4, 18, 19, 20, 1, 22 TREATISES 7 ; reste Administrative Law SR. $2. 05 (1959) dcicacineaial 7. ARTICLES - Ye Comment: The Supreme Court’s Bill of Attainder Doctrine: A Need for Clarification, 54 Cal. L: Rev. 212, (1966) ... 7 IN THE: °°... > ana _OcTOBER be coe 1967 se No. 325 . i ) Re: ce . ' \ ° _ JAMES A. WATTS and WALTER. B. BLUE, Petitioners. : : oe, Vv. ° ane SEWARD SCHOOL BOARD AND BOARD OF EDUCATION, - APPEAL HEARING COMMITTEE, Respondents BRIEF OF RESPONDENT © '& SEWARD SCHOOL BOARD eke _STATEMENT OF FACTS. The facts of this case are eidccaretedy anid fully set forth in’ the majority opinion of the Supreme Court of Alaska, reported at 421 P.2d 586. Réspondent adopts the recitation of facts contained ‘there. Briefly summarized, the relevant facts are as follows. ‘Petitioners were teachers in Seward, Alaska, a willage of less than 2,000 people. In March of 1960, the Seward School Board sent petitioners notices that they would not be retained for the next school year. In accordance with Alaska law then in effect! ‘the. Notices contained bills of ee setting forth the causes of | non-retention. iam other . charges, the bills of particulars stated -that peti- _ tioners had assisted in the printing and distribution of an open ~Tetter containing false statements against the superintendent of schools = the intent of’ ne his eet standing and 1 SLA. 1957 Ch. 71 §1 2 destroying community arid public confidence in the administration ‘of the schools. The petitioner Watts was charged ‘with taking part . in. and encouraging clandestine activities of teachers -with the . purpose of ousting the superintendent of schools. Petitioners were _ also charged with substantial non-compliance with the regulations of the Seward School Board relating to the. filing of complaints and grievances against the wae eee and’ the school board. - Petitioners appealed theif non-retention to the school board as they had .a right to do under Alaska law.2 Hearings were held before; the Seward School Board. Petitioners appeared and were represented by counsel. Petitioners both admitted distributing and ‘open letter to the Seward School Board. The. open letter contained ¢ a list of ten allgged incidents which were stated to be “definitely detrimental to the morale of our: teaching staff and the effective- ness of the local education system.” The open letter accused the “superintendent of the Seward Public Schools of misconduct ranging from “dictatorial treatment of teachers” to neglect of the music department. ‘The open letter, dated May 18, demanded a con- . frontation with the school board on May 19. It contained a demand for “immediate, — substantial improvement in its ad- ministrative policies . ' The open. letter was distributed by mail to the 5 ialeaai public in Seward. bgaron: of Hearing of Seward School Board, No- vember 1960, p. 41; 66; hereinafter “Tr”. Petitioners admitted that many of the charges set forth in the open letter had ‘never previ- . ously been brought to the attention of the superintendent (1 r. 76). _ The petitioner Watts, in April of 1959, solicited support from teachers for a private move to oust the superintendent (Tr. 12, 21, 24,297.) _ The Seward School Board entered detailed findings. The chotgen of the superintendent's misconduct contained in“the-open letter were found, with one minor exception, to false. The school board also found that. petitioners were ‘guilty of substantial’ non- ‘compliance with the school ‘board regulations in distributing the open letter before presenting the grievances and ong, which it . contained to the dcnieksecame eran 2 SLA. 1957 Ch. 71 §2. 3 SUMMARY OF ARGUMENT . Petitioners .were nonretained for “immorality” according to ‘the nonretention statute then in effect. “Immorality? was. interpreted by. the Alaska Supreme Court as a catch-all phrase serving the same purpose as nel such as — cause” or ee } conduct.” A Statute which states that an employee may be dismissed for _ cause is not the kind of statute that, is subject ‘to the. objection of overbreadth. There i is NO ‘specific legislative judgment that a certain “, activity justifies the ‘penalty of dismissal. Rather there is a delegi- tion to an agency to judge appropriate cases for the imposition of penalties. It is the specific, agency a om is reviewed on appeal not the statute itself. The statute eatin dismissal for cause is not void for vagueness, because members,of a profession must be charged with. knowledge of what kinds of actions are unprofessional. Furthermore, it is impoe- sible to list all specific acts which might. constitute “good cause” Therefore a state has no alternative but: to employ. a dismissal- for cause technique. Petitioners’ nonretention pursuant to the statute was valid, be- cause their actions did constitute good’ cause. In reviewing an ad- ministrative decision such as the- present one the standard to’ be - used is whether there is evidence in the record to rationally justify - a finding of good cause. Petitioners only challenge the existence of good cause by asserting that they had a constitutional right to en- gage in the activities for which they were dismissed: It is clear, how- ever, from an examination of the cases involving specific regulations of conduct, that petitioners did not have a right to engage in soli- citations; of other. employees on school’ time and to distribute an . . open letter to the public of Seward which contained many false ~ - and -misleaditig statements. Since these activities. could have been regulated and forbidden to public employees by. specific statutes , without constitutional objections, then these actions .can also con- stitutionally form the basis of an adjudication # K good cause. Petitioners’ issal must be we for the additional reason that they violated oy sebvtation E-7 of the Seward School Board.. The _ regulation provided that grievances are to be submitted first to - - ° \ + : ° \ ‘. a ‘ er ; ‘ ‘ ¢ ’. f ty P - otg e Pe at i Pe te) . ae . e~- ‘ , ¢ Ny - ie j * ‘Ve bs Ye « J “by - A Fd | +. . - *e ° ~ @ “\ % . m /* as. ofa Py . ‘ P- mn a > ere >, 4 3 , ~ af . + . ’ a ff ‘ "ae - +s P bad ‘ Pa 2 7 wae ae ey, wel OES ee 4 _e m . “th = 24, YE ; ; Sg 7 y Po” ae > y / 7 . bad s ee / 4° _able interest. but. i$ a apne need. | 4 - the snalihaiiiiied to allow him tp act. ‘upon them, and then an ye «appeal may be ‘taken.to the School Board. Petitioners violated the © lation by distributing an open letter. simultaneously to the _ superintendent , and the.Schdol Board. The open letter contained many giyance and complaints, noné of which, with one possibie | - exception;-Hiad, previodsly. been ¢ unicated to the superinten- “‘dent.’ Petitioners’ «dismissal baged on the violation of. E-7 should -thefefore be sustained. The School Board’s’ interest in having their’ _ employees’ grievances go jthrough els ‘before being taken to -“the. public by means of strike-or open’ stens, $8 is Hot gnly a reason-. » il = : ¢ Péitioners’. ina ‘objection’, to’ E-7 of vagueness and». overbreadth should not be considered: because they were not timely raised. Im any case, the objections are. without’ merit. E-7 is riot, ’ vague; it thearly sets fortha simple. ‘procedure for processing griev- ~-anées. Furthermore, the regulation. “was applied literally. The, regu- lation is also not-ovetboard: It is not true that the regulation covers ~ gomnd cases wher€ the state interest does not justify the. restrictions. Regulation E-Acould not be made narrower.. we. é a , ® a wy - 1 at _? ; ign ry we © { ‘ o° : g K . : % : ‘ ? . dives. an : ~ ” - e . “ “4 : , —s~ oe y ‘ we, , > , . ‘ 7 F Z y, , . > 1 ‘", ) . . ‘ i a a ¥ | 4s + . % o a » .? ‘=! . ‘ ‘ ® * = Y i% setae oy , * . 4 = * . Peg AI e* a “ ao eer a semae ys sue a e ss ened? “ARGUMENT ikea I. THE. STATUTE UNDER WHICH PETITIONERS WERE. risa | NONRETAINED "WAS NEITHER VAGUE NOR OVER- - “’BROAD.. P _° i = ¢ Petitioners. were non-retained under S.L.A. “1957, Ch 71, $2, At the time in question, tenure teachers could. - be dismissed for cause.? “Cause” was defined as: * aa ve (a): incompetency: which ‘is ‘defined as the inability or the ) unintentional or intentional failure to perform one’s legiti- . ye : mate duties in a satisfactory manner; or (b) Immorality which is _-defined as conduct of the person tengling to bring thé individual . concerned or the teaching pfofession into publie~disgrace or BS | “disrespect; {c) Substantial non-compliance with the school / 5 er _ laws of the Territory or such regulations of the Territorial LW | Board of Education or any other nara, seeney as are % ae applicable or of the employing school district; % .*§.L.A. 1957, Ch. 71 $2. a . . * The Alaska Supreme Court aaron that “immorality asde- ss \, . -fined in the ‘statute was intended to be a catch-all, . Serving the » | . \ Same purpose. as phrases such as “‘good cause”, “unprofessional ‘- conduct”, or “conduct unbecoming a teacher.” Watts v. Seward \ School Bd., 421 P.2d 586, 590 (Alaska 1966). This authoritive in- terpretation of the statute should be accepted by this court. Cramp A v. Board of Pub. ‘Instruction, 368 U.S. 278, 285 (1961). Such dismis- a | *sal- for-cause statutes are quite common and are employed as a iY ee: Ba technique by many states and the Federal Government. For example, aca 2h an employee : may. be removed from the federal .civif service “for | _ such cause as will promote the efficiency of such service.”4 These phrases necessarily cover a broad range of conduct, because RO) aaa statute could be framed to include with specificity all the particular | . '- acts which might render an employee unqualified to continue his | eaake ise” Before consideration of the issues of legitimate’ staté: 3 SLA. 1957, Ch:71 61 & are ; es 45.U8CA, §7501(a) (1967) ‘compete . rs, _ Am individual in the com eg ve service may . removed or suspended Pog auch ‘Bee 5 omet toll eet te 512 (1967) (pre ue oyees) “and : em) see statutes cited in ever 399, 406. n.8 (1958) ae arte Ae ra as ~ od i” eee 6 - interests and protected civil liberties, it is of the utmost. importance to riote the kind of statute: undei, which: petitioners were non- retained and i” petitioner’s. challenge that the statute was vague and overbroad. - © ie * - The aie Was Not The Kind of Statute That iS o* ' be Subject al the scat! of Overbreath. In such dismissal- for-cduse statutes. no Legiilattve judgment has been made that any particular action justifies the imposition of the. penalty of dismissal. For example no judgment has been made that - failure to sign an oath renders an employee unfit for employment. | The legislature has not declared that a state’s interest will be advanced by dismissing ‘those employees who engage: ‘in a specified activity. Instead, in dismissal-for-cause statutes an\ agency has been entrustéd ws the task of finding whether a particular employee’s . actions constitute good cause for dismissal. Thus the decision that. “o a state’s interest will be advanced by the dismissal ’of an employee. - has been delegated and is to be’ made*in a judicial fashion on a, case by case basis. ° rs) © 7 Cie - \ ? be to attack the statute for overbreath.¢ By litigating this issue, the employee would be able to make sure that the legislative judg- ment would be applicable to his case and ‘that benefits wer@ not .being denied him without the advancement of.a state’ interest. To not allow a recipient of benefits this kind of judicial review - before permitting a denial-of his benefits, would in effect sanction . a Bill of Attainder. See Comment: The Supreme Court's Bill of Attainder Doctrine: A Need For Clarification, 54 Cal. L. Rev. 212, - 250. (1966). a In a case where employment can be denied for unprofessional conduct, or as in the federal civil service “for such cause as will promote the efficiency of such serviee,” 5'U.S.C.A. §7501 (a) (1967), the need ‘for and type of judicial reviéw is quite different. There is no legislative judgment that a penalty may be imposed or: a | pubjic benefit may be denied for a particular reason. Rather, there is a delegation to an agency to judge appropriate cases for the imposition of penalties. Since there is no legislative judgrhent in the ‘dismissal-for-cause statutes, a fortiori the legislative judgment cannot _ be overbroad, and the issue of overbreadth need not be considered on judicial reView. In a dismissal-for-cause statute, an employee is directly given the opportunity to litigate whether what ‘he did, ; in fact justifies the denial.of employment to him. The judgment that the state’s interest: demands the dismissal of the employee is \made specifically in each individual case. The task of judicial review of this kind of procedure is not to decide if the statute is overbroad, but is only to determine if there has been a valid delegation of power,” and ifthe adjudication. made under the statute was correct, ie., that it was not arbitrary, that it was in | * accordance with substantial evidence, and that the state’ s interests in | the particular case warranted the’ denial of the benefit. 6 In United States v. Robel,—_U.8.—.88 Sup. Ct. 419, 427 (1967) Jus- tice Brennan (concurring g) pointed to the fact that the defense plant worker received no opportunity “to prove that the- statute’s _-- sumption that he is a security risk [because of membership in | Communist-action fd a A is invalid as applied to him.” 7 In Jordan v. State Ba” of Ins., 334 8.W.2d 278 280-81 (Tex. 1960) the Texas court u upheld the use of the. -“not worthy of the public confidence” as a standard by w. insurance companies could be judged and their licenses revoked. The court held.that the true constitutional test was whether the standard was certain nets © as tan adequate judicial’ review. ‘The court cited Davis, A tive Law Treatise, §2.03 (1959). This issue has not been raised in the present case. ta 8 -B. ‘The Statute Was Not Void: For Vagueness, 4 In the*few cases. where a. dismissal-for-cause statute has been ‘attacked for vagueness it has been upheld. The question of vague-: - ‘ness, appears to be governed by Beilan v. Board of Pub. Educ., 357 U.S. 399 (1958). In that ‘case a teacher ‘was dismissed under the dis- qualifying ground of “‘incompetency.” His offending conduct* was refusing to answer questions propounded by his superior in private ‘concerning his possible association with communist groups. The teacher’s contention that due process of law was violated by ‘in- cluding his refusal to’ answer within the term “incémpetency” was rejected by the Court. The court mentioned that the Penn- sylvaniia statute under. which he had been ‘dismissed, “unlike those © of manly other states, contains no catch-all phrase, such as ‘qgnduct unbecoming a teacher,’ to cover disqualifying conduct not included ‘within the more specific-provisions.” 357 U.S. at 406. By. inference * then, it would have been constitutionally permissible to have dismissed. the teacher under a catch-all standard. The Court pro- ceeded to note that the term “incompetency” had been broadly interpreted by the Pennsylvania Court and’ that ‘its’ dictionary _ definition. was not particularly prescriptive. Since this was so, the . Court held, the he extensioh of the term égncompetency” to include the teacher's refusal to answer was not. inconsistent with the United . States, Constitution. ; In Board of Educ. U,.§wan, 41 Cal. 2d 546, 261 P.2d 261, 266 - (1953), cert. denied, 347 U.S. 937 (1954) the Court rejected an attack on the standard “Unprofessional conduct” as being void for vagueness, with the following statement: ioe As-was said in the Goldsmith case, 66 Cal. App. at page 168, 225 P. at page 787: “the-calling- (of a teacher) is so intimate, its duties so delicate, the things in. which a teacher might prove - . unworthy or would fail so numerdus, that they are incapable — -of.enumeration in any legislative enactment . . . the teacher is entrusted with the custody of childrén and their high pre- . paration for..useful life. His habits, his speech, his good _ name, his cleanlinéss, the wisdom and propriety of his unofficial | | utterances,’ his ‘associations, all are involved. His~ ability to inspire children and.o govern them, his power as a teacher, and the character for which he stands are mattersof* major con- cern in a teacher’s selection and retention. How can all these i) | shienin be provided for and: thainen oon them be particularly as specified in a single statute? ae CG @ While it is true that when one must guess what conduct may lose him his position, one may steer wider of the dnlawful zone® and _that the threat of sanctions may deter almost as much as the appli- ‘ cation of sanctions,® these considerations do not compel the result ‘that a statute allowing dismissal for cause. or unprofessional .con- - duct is void for vagueness. As shown above, the necessity of such statutes have been recognized. It is impossible to accurately en- umerate .all possible grounds which could justify dismissal. Thus, . the state has no alternative but to employ the dismissal- for-cause technique. c on Second, members of the profession must be ileal with ipeneral knowledge of what conduct is unprofessional or may. constitute “cause”. Unprofessional conduct: like “good moral character”, condition to the practice of law, is not unconstitutionally uncer- tain merely because subjective factors are involved.'0 All employees, public or private, know they may be dismissed for cause, yet. no’ _ one really knows exactly which acts’ may be considered sufficient’ cause. However, an employee is protected from arbitrary, irrational. or discriminatory interpretation of “good cause” by the procedure --of a fair hearing, notice of the charges and by general guidelines set by the ethical standards of his ‘profession.'1 = Furthermore, the Statute is not rendered any less valid by-the .. fact that some conduct. may be unprofessional involves otherwise ,protected speech activities. If an employee were dismissed for what was determined to be an ‘exercise of his constitutional —. it v ® Speiser v. Randall, 357. US. 513, _ (1958). 3 NAACP. v. - Button, 371 U.S. 415, "433 (1963). 10 Schware v. Board of Bar Examiners, 353 US. ‘232, 248-49 (1957) (concurring opinion indicating ‘‘moral character” not too vague. ) + 11 For example, the preamble the Cafiins of Professional Ethics . of the American ar an eroneats te tae e enumeration of par- af be construed as a denial of the existence of others aati a ne —— not specifi- ated mentioned. ; would not,mean that the statute was unconstitutional, but only that his specific dismissal was without valid cause. Comipare Schware v. Board of Bar Examiners, 353 U.S. 232 (1957) with. a . v. State’ Bar ‘of Calif 366 US. 36 (1961). - In attacking the’ present statute for vagueness 1 and’ overbreadth, a petitioners have made a fundamental error. The only issue in the present case is whether the state’s interest justified denial of employment to petitioners because of their specific actions.’ The statute which has been interpreted .as a dismissal-for-cause statute, cannot be attacked as’ overboard or vague;!2 only specific decisions a made under the statute can be attacked on the basis of a-lack of | actual good cause. 2 I. PETITIONERS’ NONRETENTION PURSUANT TO THE STATURE, Was VALID. we A. The Appropriate Standard of Review is Whether There is Evidence in the Record Which Rationally — a oe Good Cause. ' This case involves-an administrative adjudication that certain - actions taken by petitioners constituted valid grounds for their non: retention as teachers. Because of the broad grounds of ihvalidity asserted by petitioner, it is important to note what issues are not presented. Although cited more than a dozen times in petitionet’s - brief, New York Times v. Sullivan, 376 U.S. 254 (1964) does not directly bear on the present case. New York Times was concerned with a state’s power to enforce its defamation laws against those who criticize its own employees in furtherance of legitimate state interests. Eg. Houston v. United States, 297 F.2d 838, 841 (Ct. Cl.. ‘ 1962). If a public employee made a personnel report ota a public ‘of- - ficer containing negligently false and defamatory statements, the em- ‘ployee may be shielded. from a libel suit, but he’ ere could be fired for incompetence. 12 This is not a case of a condition being attached to publi c em- Ba Be0 and for that reason ne F - Board of ec BE ge 4 is irrelevant. Also United Pub. Workers of Ameri 330 U.S. 75 (1947) ahd Fort v. Civil Serv. Comm'n, 61 C a's $1 5 38 5 'Gal Rptr. 625, 392 P.2d 385 (1964) are not y rele- vant. these the issue of protecting political act vie was Eh Ge comet of reviewing a specific legisia contained in a statute; in ae case there is is no legislative —— of a particular vity mts, 385 — tive restriction ~—y - "the standard to be used is whether. there is evidence to rationally. jastify a finding that a dismissal. was made for good cause. Cf. Konigsberg v. State Bar of Calif., 366 U.S.°36. (1961); Beilan v. * “Board of Pub. E@ttc:, 357 U.S. 399 (1958); and Schware v. Board of Bar.Examiners, 353 U.S. 232 (1957).. In Schware, the state de- cision denying membership in the bar .because of lack of: moral character, was held to be a violation of due process because there was “no evidence in the regord which rationally justifie[d].a finding that Schware was morally unfit to practice law.” 353 U.S. at 246-47. In general, the standard for review of school board decisions on the nonretention of teachers is the same ds the standard for the review of. any agency decision. For example, in Hunter v. Board -.* of Educ., 265 Ky. 162, 96 S.W.2d 265, 269 (1936), the court stated that it would riot review the wisdom of the teacher’s removal but would overturn the agency’s decision if it was arbitrary, corrupt; or made without competent evidence. Appeal of Sullivan County Joint School Bd., 410 Pa. 222, 189 A2d 249, 251 (1963), . . States the same standard for review in similar terms: “[A] court of commons pleas should look to see only if there | is a manifest abuse of discretion or an error of law on the "pat of the Superintendent . . .” . This rule is especially ap-_ _ propriate where, as here the question involves the competency of a teacher. Not only does the Superintendent possess greater expertise for this difficult: determination, but the legislature... © - _ has assigned to him the very fob of establishing the standards by —— pcos of competency have to be made. — The issue of constitutional rights in ie present case is raised - only in the following context: if after a consideration of all rele- _ vant factors, petitioners had a constitutional right to do what they did; then it would be arbitrary and unlawful to deny them employ- ment. Whether petitioners had or had not a constitutional right to do what they did is a conclusion, not a premise. It is the condlusion to be reached after weighing the state’s interest in regulating the kind of conduct petit? uners engaged in, against any restraint on their right, to engage in the activity. dt ‘is. misleading -to state as peti- - tioners do, that since citizens have a right to criticize the government, the activity is protected; and singe the activity, is protected, then . ~ ‘ petitioners cannot be fired for engaging in it. See Brief for. Peti- 12 ‘tioners, p. 26.13, What must be decided i is hot the shine question whether citizens have a right to criticize government., This case does not involve merely the state’s relationship to its citizens as a soverign; for the relationship here is that of employer to em- ' ployee. The question here is whether the Seward School Board had a legitimate ‘interest in dismissing these. teacher’. Bz Petitioners’ Dismissal was Justified by Scheol Board. in- _ terests Which Were Both Reasonable and Compelling. In asserting the School Board's interest ‘in ‘regulating the kind of . conduct that petitioners engaged in, it is helpful to examine cases which involve ’the review. of a legislative statute which regulates _ specific conduct. In reviewing that kind of siatute, vagueness and. overbreadth are the issues, unlike the present case; however, in . deciding a statute is overbroad courts usually set forth a narrower area of permissible governmental regulation. Logically, a specific adjudication, such as the present case, should be sustained, if it dismisses an employee for reasons which fall within an area of per- missible regulation. If certain conduct constitutionally could be prohibited by statute for ‘a public employee, then dismissal for - the same conduct cannot be attacked on constitutional gr ounds - if such dismissal is deren by an agency under a dismissal-for-cause statute. By the standards set forth in cases involving specific prehibitions, petitioners’ non-retention was for reasons. which fai within the area of permissible regulation. In United:Pub. Workers of America v. Mitchell, 330 U.S. 75 (1947) this court nosed in cere) the . Leah a. The e essential rights of the First Amendment in some instances | | are subject to the elemental need for order without which the | _ guarantees of civil rights to others would be a mockery. ‘$30 U.S. at 95. This court went on to hold that restrictions which rationally relate to legitimate governmental interests. are permissible. It was recognized that political activities on the employer’s premises and during working hours clearly justify restrictions, $80 U.S. at 95 n. 29, and aeents that active at masa - oxen — “large, without first’ allowing their employer ‘an- “opportunity to \ explain, have demonstrated their unfitness to be teachers. PE a, Petitioners do ‘ekeitalape * “that the morale and discipline « of the public service are dmong those interests which may require an accomodation between legislative power and individual ex- ercise of First Amendment rights.” (Op 36) Petitioners suggest that the appropriate test for deciding when the morale and discipline © of public employees requires a restriction ‘of their personal liberties, — ‘is the clear and present danger test used’ in Wood v. Georgia, 370 ’ U.S. 375 (1962) which involved the punishment of a sheriff for ry try contempt because he .criticized in a ‘press rélease a ruling of a local court. Wood is not helpful in analyzing the present case. . An Wood, this Court found that no allegation had been made that ‘the sheriff's position, as sheriff, related to the-harm his statements. could produce, and that there was no question of the performance .. of his duties as sheriff. 370 US. at 393. The sheriff was being. punished for-the mere expression of his views as any other citizen ‘might be subject to the contempt power. ‘There was no special _ employer-employee relationship in Wood as there is in this case. ~\ AG 4 o 2 ~~ of an open Jetter to the superintendent and members of the Seward _ ° ‘ . . -- There was ‘no element of conduct as opposed to “pure speech” as there is in the present case. Most important the state interests to. - he protected’ are much stronger in the present case where t the state’s © interest as eniployer.in maintaining the discipline and effectiveness of — employees thas been. cma to be a compelling one, “Mm. PETITIONERS’ NON. RETENTION FOR | SUBSTAN. '+ TIAL NON-COMPLIANCE WITH SCHOOL BOARD. _» REGULATIONS. E7 WAS VALE d 2 . > ad ine ms ~ { Petitiqners’ teaching contracts were not renewed becainse, among _ -. other reasons, they substantially. failed to comply/ with Seward . ‘ School Board Regulation E 7. That. regulation states: : E 3 Geiesinens, cckiphali and communications from eiaployees & . Ss - - - shall be submitted to the Board through.the Superintendent. Any employee, “or group. of employees, may at any time — to thie Board. - All ain were given copies of the regulations ‘of the board; petitioners admitted they were familiar with regulation E-7. (Tr. 149 66). The Supreme Court of Alaska noted that the .regulation. required that grievances “should be submitted to the Board through the’ Superintendent. It provided @ right of appeal from. the Super- intendéft ' to the Board.” Watt’s v. Seward School Bd., 421 P2d _ 586, 601 (Alaska 1966). Petitioners violated this “regulation by . participaging ‘in the preparation and simultaneous distribution Pd . School Board. 421 P.2d at 601. The opén letter contained many , grievances and complaints, none of which, with one possible ex- Pee Ty a ception, had previously been communicated to the Superintendent. bain P2d at ol; ae - . . e“ sustaining the Seward School ‘Board's conclusiori that peti- -tioners were guilty of substantial non-compliance ‘with Board _ - Regulation E-7, the Supréme Court of Alaska noted that not only no had a substantial violation of the’ regulation taken place, but the : _ purpose of the regulation, supplying an orderly process for deciding’ ari aca ae eT qrickences. had been subverted by petitioners’ conduct, ieee, The factual basis for the charges could have been verifiéd by ae oe " appellants if. they had taken the. time to do so. Appellants ~ 8 . a : ry . : . \taining redress. Instead, they attempted to arouse and inflame the public against the Superintendent and the Schook Board - . on charges which were largely untrue. They chosé to attempt | to substitute the. mass meeting | for = ~~ en ‘of hear- ing and =—" . : , ; qn at 607° The. regulation does not, ‘as Petitioners suggest, conffict with regulation E-9 which provides. that copies of communications. — addressed to the Superintendent inay be sent, to the School Board. .The plan envisaged: by. ‘these regulations is that grievancés are to - be submitted first to the Superintendent to allow him te act upon them, although copies can-be sent to the Board at the same: time. . _The Board is only to.act dn appeal from the decision of the Su intendent. ‘The open letter was addressed to the School Board not the Superintendent. The letter’s _purpose was to force the Board . to act directly and within 24 hours ‘on matters which the Super- intendent had not considered. ya the letter’ was indeed a vio- lation of E- 7. A sined far regulations which define and govern grievance pro- cedure is not unique to the Seward School system, but is widely . * recognized as ‘essential to orderly school administration: Even in the absence of a — statute ‘or r regulation, an —— court said: . a Sinaia: be no. doubt dc I aclecr heim of a.censorable infraction of interscholastic athletic. regulations by his school, “he should seek to correct it. However, promotion, of the best “interest of his school dictates that he would first call it to the ‘ attention of the coaches and of his principal. or superintendent ; of his school, and, failing action there, call it to the attention ’ of the. Board of Education, and then, if necessary, make a - formal protest or report to the proper officials of ‘the ae 3 State High School. Athletic Association. 7 4) cee. aor Jepsen v. Board of Educ:, 19 Il. App. Od 204, 1583 N.E.2d 417, 420 (1958). In Jepsen the’ failure of a teacher to follow orderly . channels..in processing his grievance was held to be sufficient cause fi oe his forth the specific — to be followed. . v admittedly ignored established diiiieanie procedure for ob- dismissal even in the absence of a regulation setting "Petitioners have ‘stated that. the. interest of the School Board in maintaining an orderly grievance procedure is “truly inconse- _ | quenital’”, (Op. 35), and that -public officials should not he able _. to. impose “vows of silente to, be o ed on pain of. discharge.” .. (Op. 36).An employer's interest, in having employee grievances go _ _ through chanels before being taken to the public by means of strike or “open letters”, is not only a reasonable interest, but’ is a com- ' pelling need. “What separates democracy from mob rule is the. " existence of procedural meanis for orderly «change. . Pn Petitioners. have -not contested the fact that théir open letter of | "> May 18, 1959, to members of the Seward School Board and the . superintendent was in direct violation of ‘the policy and outlined procedure of regulation .E-7. it is a well-established principle that this Court will not disturb state court judgments which rest on . independent’ and adequate grounds, even’ where these judgments “also decide Federal questions. Henry v.. Mississippi,’ 379 U.S: 443, 446 (1965.) Wolfe v. North Carolina, 364 U.S. 177 (1960.) Petition- ers’: noncompliance with. regulation E-7 is an. independent and. . sufficient state ground for the decision to nori-retain escent for that reason, it should not be disturbed. = Petitioners. have also raised coristitutional objections, vagueness 7 gat and overbreadth,to Regulation E-7. Op. 45. These objections were first raised in a petition for rehearing to the Alaska a aemceurgrndl — ; 423.P.2d 678 (Alaska 1967) after-that court inade its second de: - —— tision, 421 P. 2d 586 (Alaska _ The Alaska Court refused the. rehearing and stated. . & This court has not overlooked or failed to consider any ques: . tion presented to it. The fact is that at no time during the six - years this case has been in existence hay it ever been urged, &. 2 the administrative tribtinals or courts, that there were "..* any constitutional questions related to the issue-o -of the Validity and application of : 498 P. 2d ‘at 678. The’ raising of the constitutional issues on re- hearing was held to violate two established procedural rules of the , Supreme Court of Alaska. One, the court will not consider matters on —. which were not fitst eee" to the lower courts. 17 i — + ‘anette ¥, Clllimbn Laborets’ Union, 402 P.2d 199, 201. (Alaska 1965) Pollastrine v. Severance, 315 Pad 528, 531 (Alaska 1 1962). ° a : see Two, the ¢ court will not consider fae matters which have noi » . been presented in compliance with its rules, which require a state- "ment of points on appeal, and: which require, the appeal brief to . ~ list the es presented for, review, and —— of error. 18 . Since petitioners’ constitutional slipcase” were not properly raised according to State procedure, they should not be considered in this court. The importance of rajsing constitutional questions “i due’ time” and in accordance with state procedure was discussed by Chief — Stone in Yakus v.. United States,” $21 US. 414, 444-45 (1944): _ & No procédural principle is more familiar to this Court than that a constitutional right.may be forfeited in criminal'as wéll as civil cases by the failure to make timely assertion of the right ’ before a tribunal having jurisdiction to. determine it. . . .. Courts may for that ‘reason refuse to consider .a constitutional objection even though a like objection had previously been " sustained in a case in. which it was properly taken. While this Court in its discrétion sometimes departs from this rule in | _ cases from lower federal courts, it invariably adheres to it in " cases from state courts, see Brandeis J. concurring jn Whitney _¥«-People of the State - California, “ee sid U; S. at page 380. ; ee a in as much as Retiticners have waited six’ years before asserting their tonstitiational: objections to E-7_and ‘the issues were never properly before the state courts, this Court’ should refuse to comevar it them. ne : : ; hg , wn aa ; one : . , . i; ~ ss eat : ' Moreover, the supposed constitutiortal “objections to regulation _E-7 are completely insubstantial. It is difficult to understand peti- tioners clai##¥.that the regulations’ s interpretation was a “grotesque transformation of. its innocous. Tanguage”’ because no one*could know it would affect “the rights of teachers to communicate with the public.” Op 46. The difficulty arises because the Court did not find that E-7 was violated because of the distribution of ‘the ne open letter to the public. ‘The violation occurred because the letter -was’sent to the School Board demanding their immediate action : without first ong it to. the superintendent. At was not sub- -. J 1 18 Rules of the Supreme . Court of. Alaska 9(e). sated (8), (6), See, for example, Parks v. Brown, : 368 P.2d 220 (Alaska 1962 ee -#Q 3 2 : mee eee ~* " Ynitted shrotigli the sindbis to the Board. 19. In 9 ' “ec -Tegulation was tanerprened literally. : et ‘ Petitioners also claim that Regulation E E-7 is overboard because eee it requires all grievances no matter how genuine or immediate to be submitted to the School Board before being bro spublic attention. In order to be overboard, a statuse- oa some’ instances of ‘activities which. are protect Petitioners point to no instance wher the right to y feienndllate abe + Ee disclosure would be. protected f ‘om what is essentially a regulation ee Place: In fact, it is hard to. imagine howa st: as E-7 could be made narrower. Are petitioners \ esting - the regulation should ‘only cover -unitaportant griev- . — a ances? Such a regulation could not .be made Yo work, Petitioners can not expect employees with. ‘grievances to admit* that their com- - . 3 f= » plaints are not. genuine or immediate. Ree eS eee Ge ay ff : © hs _ : M . a . oa “CONCLUSION For. the biegeig reasons and on ‘die strength of the toiealag authorities, this Court should guitain the decision of the Alaska — Supreme Court.’ ‘ Present oe ‘ y a BA. eS _ . © Turopore M. Pease, a Ss ps Bice Warren W. MATTHEWS, JR. ae eo 2 Burr, ‘Boney & PEASE ae a. 825 West Eighth Avenne . ees ' “Anchorage, Alaska 99501 et ty < 4 19. Watts v. Seward School Bd., 421 P.2d 586, 600: (Alaska 1966). - =, (School Board findings 9 and 10.) ee Sheen Ce --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1116%3A07. Public record. Not legal advice.