Petition — Burton v. Cascade School District Union High School No. 5

|

Mi!

JUN 23 ts |

In the Supreme Court

of the United States

OCTOBER TERM, 1974

7 & -i1 626

PEGGY BURTON,

Petitioner,

v.

CASCADE SCHOOL DISTRICT UNION HIGH

SCHOOL NO. 5; LEONARD FEDERICO,

individually and as principal of Cascade Union

High School No. 5; FRED ARCHER, individually

and as Superintendent of Cascade School District

Union High School No. 5; LEROY McGILL,

ERVIN KREJ ER, HERMAN HENRIKSON,

MERLE CRANE and CLARENCE GOFFIN,

individually and as Board of Cascade School

District Union High School No. 5,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES F. HINKLE

JERE M. WEBB

900 S. W. Fifth Avenue

Portland, Oregon 97204

Attorneys for Petitioner

STEVENS-NESS LAW PUB. CO., PCRTLAND, ORE. 6-75

TABLE OF CONTENTS

Gpamiems Below. ...ecccecaes

I a, hgh oe

Question Presented .......,

Statute Involved ......e.

Statement of the Case .....

Reasons for Granting the Writ .

DE ic 6 Ge 6% So Ks

Appendix:

Opinion of the United States

Court of Appeals for the

Maman Cisemst . « cc ccen

Order of the Court of Appeals

Denying Rehearing ......

Opinion of the District Court

for the District of

an.’ + +» * Se ee SS we a

Transcript of District Court

Ruling Re Plaintiff's Relief .

Judgment Order of the District

Court . . . . . ° >. . . - * .

17

ii

INDEX OF AUTHORITIES

Cases Cited Jannetta v. Cole, 493 F.2d 1334

fee Gs BUVEP ow te tt tte

Page

Johnson v. Branch, 364 F.2d 177

(4th Cir. 1966), cert. denied 385

WeB- 2003 (1967) . . wc cece, .

Andrews v. Drew Municipal Separate

School District, 371 F. Supp. 27

(N.D. Miss. 1973), aff'd 507 F.2d

611 (5th Cir. 1975 ‘2 6 oe ss 6. oe .

(Sth Cir ) Keyishian v. Board of Regents, 385

Bradley v. Cothern, 384 F. Supp. Wels Tey CEPOTP wet tt tt

sane GisB. Dee. 1976) « we ce oe oe

Langford v. City of Texarkana, 478

Chase v. Fall Mountain Regional F.2d 262 (8th Cir. 1973) A ee)

School District, 330 F. Supp. 388

(D. N.H. 1971)... 2.4. 4. s - 12 McGee v. Richmond Unified School

District, 306 F. Supp. 1052

Cole v. Choctaw County Board of (N.D. Cal. 1969) ... te

Education, 471 F.2d 777 (5th Cir.

1973), cert. denied 411 U.S. 948

DE sg ar ea ee ore ae ei ace: Set ee Palmer v. Thompson, 403 U.S. 217

Ee © 8 © © 6 ew 6 eo ks

Cooper v. Aaron, 358 U.S. 1 Perry v. Sindermann, 408 U.S. 593

(1958) + a . 7 . . . . . . ° . . . 10 (1972)

Doherty v. Wilson, 356 F. Supp. 35

(M. ie Ga. 1973) . . . . . . . . . 12 Phelps ige Corp. y. National

Fisher v. Snyder, 346 F. Supp. 396 Labor Relations Bd., 313 U.S. 177

(D. Neb. 1972), aff'd 476 F.2d 375 ee 4S 6 & & Goo e oats

(8th Cir. 1973) ........e.. 10

Rolfe v. County Board of

Gieringer v. Center School District “ae 391 F.2d 77 (6th Cir.

No. 58, 477 F.2d 1164 (8th Cir.

1973), cert. denied 414 U.S.

832 (1973) 7 + . - . . 7 . . . . . 10

Russo v. Central Sch. Dist. No. l

469 F.2d 623 (2d Cir. 1972),

Hanover Tp. Fed. of Teach. v. Hanover a 411 U.S. 932

Commun. Sch. Corp., 318 F. Supp.

757 (N.D. Ind. 1970), aff'd 457

7.426 656 (7th Cis. 972) ..2« ee Li

’

iii

Shelton v. Tucker, 364 U.S. 479

(1960) - 7 . . 7 . . . : - . . 7

Sterzing v. Fort Bend Ind. Sch.

Dist., 496 F.2d 92 (5th Cir.

1974), vacating 376 F. Supp. 657

(8.BD. Dem. 1978) «© eo soo 8 &

Watson v. City of Memphis, Tenn.,

373 U.S. 526 (1963) . . « « « @ «

Wright v. State of Georgia,

373 U.S. 284 (1963) . « « « «© @ «

Younger v. Harris, 401 U.S. 37

(1971) . + . . . + . . . . . . . 7

Statutes

Ore. Rev. Stat. 342.530(1) (b)

42 U.8-C- §1983 . . 7 . . . ° . . °

10

10

3, 4,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

PEGGY BURTON,

Petitioner,

Vv.

CASCADE SCHOOL DISTRICT UNION

HIGH SCHOOL NO. 5; LEONARD

FEDERICO, individually and as

principal of Cascade Union High

School No. 5; FRED ARCHER, in-

dividually and as Superintendent

of Cascade School District Union

High School No. 5; LeROY McGILL,

ERVIN KREJER, HERMAN HENRIKSON,

MERLE CRANE and CLARENCE GOFFIN,

individually and as Board of Cascade

School District Union High School

No. 5,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner prays for a writ of

certiorari to review the judgment of the

United States Court of Appeals for the

Ninth Circuit filed January 13, 1975.

OPINIONS BELOW

The amended opinion of the

Court of Appeals, dated March 28, 1975,

is reported at 512 F.2d 850, and is set

out in the Appendix, infra, p. Al. A

copy of the "Order" of the Court of

Appeals dated March 28, 1975, denying

petitioner's petition for a rehearing,

is set out in the Appendix, infra,

> A il.

The opinion of the District

Court dated January 18, 1973 is reported

at 353 F. Supp. 254, and is set out in

the Appendix, infra, p. A 13. Pertinent

portions of the oral ruling of the

District Court regarding the relief to

be granted are set out in the Appendix,

infra, p. A 18. A copy of the "Judgment

Order" dated March 2, 1973 is set out in

the Appendix, infra, p. A 19.

JURISDICTION

The judgment of the Court of

Appeals was entered in this case on

January 13, 1975. A petition for re-

hearing and for rehearing en banc was

subsequently filed. That petition was

denied, and an amended Opinion filed, on

March 28, 1975. This petition for

certiorari was filed within 90 days

of that date. This Court's jurisdiction

is invoked under 28 U.S.C. §1254 (1).

QUESTION PRESENTED

Whether a nontenured public

high school teacher whose discharge

during the school year was based on a

Statute declared to be unconstitutional

is entitled to reinstatement.

STATUTE INVOLVED

42 U.S.C. §1983 provides:

"Every person who, under color

of any statute, ordinance, regula-

tion, custom, or usage, of any State

or Territory, subjects, or causes

to be subjected, any citizen of the

United States or other person

within the jurisdiction thereof to

the deprivation of any rights,

privileges, or immunities secured by

the Constitution and laws, shall be

liable to the party injured in an

action at law, suit in equity, or

other proper proceeding for redress."

STATEMENT OF THE CASE

This action was brought under

42 U.S.C. §1983 by Peggy Burton, a

public high school teacher, against her

former employer, Cascade School District

Union High School No. 5, and against the

principal, superintendent, and members

of the school board, individually and in

their official capacities. Jurisdiction

of the district court was invoked pur-

Suant to 28 U.S.C. §1343. In essence,

her complaint alleged that as a result

of the combined acts of the defendants,

she was improperly dismissed from her

position during the term of her contract

in violation of her civil rights.

In October 1971, plaintiff was

in the second month of her second year as

a teacher of biology and other subjects

when the school principal learned from

the mother of a former student that

plaintiff was a homosexual. After she

admitted that fact at a specially called

school board meeting, the board dis-

charged her pursuant to Ore. Rev. Stat.

342.530(1) (b), which at that time pro-

vided that teachers in districts like

Cascade School District, where there was

no tenure system, could be dismissed for

"immorality." Plaintiff had been evalu-

ated as a "good" teacher by the defend-

ants, and the defendants stipulated that

her dismissal was not based on any

dissatisfaction with her job perforn-

ance. Defendants did not contend that

adverse community reaction, or anything

else, had impaired her effectiveness as

a teacher.

After these facts were estab-

lished (by means of defendants' answers

to interrogatories, a Stipulation entered

into by the parties, and plaintiff's

affidavit), plaintiff moved for summary

judgment on the issue of defendants'

liability. She asserted four bases for

the motion: (1) that Ore. Rev. Stat.

342.530(1)(b), providing for dismissal

of teachers on grounds of "immorality,"

was unconstitutionally vague; (2) that

her discharge was unconstitutional

because the statute did not require a

rational nexus between her allegedly

immoral conduct and her teaching per-

formance; (3) that her discharge vio-

lated her equal protection rights,

because defendants had shown no com-

pelling governmental interest in dis-

criminating against homosexuals as a

class; and (4) that her discharge vio-

lated her constitutionally protected

right of privacy, in that her wholly

private sexual orientation and conduct

could not legitimately be made a cri-

terion for public employment.

The District Court cranted

plaintiff's motion on the grounds that

the statute was unconstitutionally

vague. The court also suggested that

the statute might be unconstitutional

because it did not require a nexus

between her allegedly immoral conduct

and her teaching performance. The court

did not reach the other issues raised by

plaintiff's motion.

Subsequently, the court held a

hearing to determine the appropriate

remedy for her unconstitutional dis-

charge. Plaintiff requested reinstate-

ment to her job, back pay, general

damages, costs and attorneys' fees, and

expungement from the school district's

records of all references to her dis-

missal and the reasons therefor. The

District Court granted every element of

the requested relief except reinstate-

ment. The only reason given by the

court for denying reinstatement was that

"It just wouldn't work out to reinstate

this woman in this little area." (App.,

infra, p. A18.) A "Judgment Order"

setting out the District Court's deci-

sion was filed on March 6, 1973.

Plaintiff then appealed the

denial of reinstatement to the Court of

Appeals for the Ninth Circuit, and

defendants filed a notice of cross-

appeal from all of the remaining por-

tions of the District Court's judgment

order. Defendants did not prosecute

their cross-appeal, and it was dismissed

from the bench during oral argument on

November 12, 1974. Ina subsequent

written opinion, the Court affirmed the

District Court's decision that plaintiff

was not entitled to reinstatement, with

Judge Lumbard dissenting.

REASONS FOR GRANTING THE WRIT

The decision below conflicts with appli-

cable decisions of this Court and with

decisions from other Circuits, and it

establishes incorrect guidelines for the

reinstatement of public employees who

have been discharged for constitutionally

impermissible reasons

In affirming the denial of

reinstatement in this case, the Court of

Appeals concluded that it was proper for

the trial court to take into account the

possible disruption or antagonism that

might have resulted from plaintiff's

reinstatement. (App., infra, p. A 4.)

The court's approval of that factor as a

criterion for measuring the propriety of

reinstatement conflicts squarely with

the decision of the Fifth Circuit in

Sterzing v. Fort Bend Ind. Sch. Dist.,

496 F.2d 92 (5th Cir. 1974). The trial

court in that case had found that a

nontenured teacher had been discharged

for unconstitutional reasons, but de-

cliued to grant reinstatement on the

grounds that to do so would create too

many antagonisms in the school district.

376 F. Supp. 657 (S.D. Tex. 1972). On

appeal, the Fifth Circuit specifically

held that the presence of possible

antagonism was an impermissible basis

for refusing to order reinstatement

where the vindication of constitutional

rights was at stake. A similar ruling

was made by the Eighth Circuit in

Langford v. City of Texarkana, 478 F.2d

262 (8th Cir. 1973), where the Court, in

considering the propriety of reinstating

municipal employees in the face of

possible antagonism on the part of

fellow employees, specifically followed

this Court's decisions that have "re-

jected the proposition that interference

with constitutional rights can be justi-

fied on the grounds that the community

is hostile to their exercise and vigor-

ously displays its feelings." 478 F.2d

at 267.

The Fifth and Eighth Circuits

have thus followed, and the Court of

Appeals in the present case declined to

follow, the principle frequently re-

affirmed by this Court that hostility on

the part of third persons cannot consti-

tute grounds for failing to vindicate a

person's constitutional rights. Palmer

v. Thompson, 403 U.S. 217, 226 (1971);

- 10 «

Cooper v. Aaron, 358 U.S. 1 (1958);

Watson v. City of Memphis, Tenn., 373

U.S. 526, 535 (1963); Wright v. State of

Georgia, 373 U.S. 284, 293 (1963).

Furthermore, the decision in

this case denying reinstatement is in

square conflict with decisions from

several other circuits in which non-

tenured public school teachers have been

reinstated as a matter of right after

having been discharged for constitution-

ally impermissible reasons. See, for

example, Fisher v. Snyder, 476 F.2d 375

(8th Cir. 1973), aff'g 346 F. Supp. 396

(D. Neb. 1972); Gieringer v. Center

School District No. 58, 477 F.2d 1164

(8th Cir. 1973), cert. denied 414 U.S.

832 (1973); Johnson v. Branch, 364 F.2d

177 (4th Cir. 1966), cert. denied 385

U.S. 1003 (1967); Rolfe v. County Board

of Education, 391 F.2d 77 (6th Cir.

1968), aff'g 282 F. Supp. 192 (E.D.

Tenn. 1966). See also Andrews v. Drew

Municipal Separate School District, 371

F. Supp. 27 (N.D. Miss. 1973), aff'd 507

F.2d 611 (5th Cir. 1975), in which a

public school district was ordered to

offer employment to certain teacher

te momen

o ii «

applicants who had previously been

denied employment on unconstitutional

grounds; Cole v. Choctaw County Board of

Education, 471 F.2d 777 (5th Cir. 1973),

cert. denied 411 U.S. 948 (1973), where

immediate reinstatement was ordered for

a nontenured school bus driver who had

been discharged for constitutionally

impermissible reasons; Russo v. Central

Sch. Dist. No. 1, 469 F.2d 623 (2d Cir.

1972), cert. denied 411 U.S. 932 (1973),

a decision in favor of a nontenured

teacher which led to an order of rein-

statement on remand, Civil No. 1970-427

(W.D. N.Y., filed Dec. 17, 1973); and

Jannetta v. Cole, 493 F.2d 1334, 1338

(4th Cir. 1974), where, in a case in-

volving a fireman, the court held

flatly that "*** the remedy for con-

stitutionally impermissible discharge

from public employment is back pay and

reinstatement."*

1. In several reported District |

Court decisions, moreover, reinstatement

has been routinely ordered for nontenured

teachers who had not been rehired or who

had been discharged for constitutionally

impermissible reasons. See, for example,

Bradley v. Cothern, 384 F. Supp. 1216

(E.D. Tex. 1974); Hanover - Fed. of

Teach. v. Hanover Commun. Sch. Corp.,

» 29 «

These decisions show that

reinstatement is not, as the Court of

Appeals here characterized it, an "ex-

traordinary equitable remedy." (App.,

infra, p. A 5.) Indeed, this Court

ruled long ago that "[rJeinstatement is

the conventional correction for discrim-

inatory discharges," Phelps Dodge Corp.

v. NLRB, 313 U.S. 177, 187 (1941)

(emphasis added), and that rule must

apply with equal force to discharges

that are impermissible for constitu-

tional, rather than statutory, reasons.

The decision below conflicts

not only with Phelps Dodge, but also

with more recent decisions of this Court

defining the constitutional rights of

nontenured teachers. In Perry v.

Sindermann, 408 U.S. 593 (1972), this

318 F. Supp. 757 (N.D. Ind. 1970),

aff'd, 457 F.2d 456 (7th Cir. 1972);

Chase v. Fall Mountain Regional School

District, 330 F. Supp. (D. N.H.

1971); McGee v. Richmond Unified School

District, 306 F. Supp. 1052 (N.D. Cal.

1969). See also Dohert v. Wilson, 356

F. Supp. 35 (M.D. Ga. 573), where a

school district was ordered to offer

employment to teacher applicants who had

previously been denied employment on

unconstitutional grounds.

~~ ae ee

-— -——-- -_»----—-—-

- 13 -

Court commented that on two previous

occasions, it had

"*** specifically held that

the nonrenewal of a non-tenured

public school teacher's one-year

contract may not be predicated on

his exercise of First and Fourteenth

Amendment rights. Shelton v.

Tucker, [364 U.S. 479 (1960)];

Keyishian v. Board of Regents, [385

U.S. 589 (1967)]. We reaffirm

those holdings here." 408 U.S. at

598.

In the present case, the District Court

ruled that plaintiff's dismissal had

been carried out pursuant to an uncon-:

stitutionally vague statute, and was

therefore "invalid." (App., infra,

P- A 20.) The Court of Appeals charac-

terized plaintiff's discharge as an

"unlawful dismissal pursuant to an

unconstitutional statute" (App., infra,

p. A 4), and recognized that the defend-

ants "*** could not refuse to rehire

[plaintiff] for a constitutionally

impermissible reason ***," (App., infra,

Pp. A 3, note 1), yet concluded that

"*** the nature of the constitutional

right sought to be vindicated is not

such as to compel reinstatement ***,"

(App., infra, p. A 5, note 3.)

= 14 «

This conclusion by the Court

of Appeals is both illogical and erroneous,

and it conflicts with Perry v. Sinéermann,

Supra, and with the Shelton and Keyishian

decisions cited therein. The latter

decisions established that nontenured

teachers cannot be denied reemployment

because of their failure to comply with

unconstitutionally vague or overbroad

Statutes. In Shelton, this Court con-

demned the “unlimited and indiscriminate

sweep of the statute," 364 U.S. at 490,

while in Keyishian it condemned the

regulations in question because they

were "wholly lacking in 'terms suscep-

tible of objective measurement.'" 385

U.S. at 604. These are exactly the

kinds of vices found in the statute

involved in this case by the District

Court, and the Shelton and Keyishian

decisions show that a nontenured teach-

er's interest in being free from the

arbitrary and capricious application of

such statutes is no less deserving of a

full measure of constitutional protec-

tion than the right of free speech or

the right to be free from racial dis-

crimination.

7

rg

- 15 -

Taken together, Perry, Keyishian

and Shelton demonstrate that "nonrenewal

of a non-tenured teacher's one-year

contract may not be predicated" on a

statute that is void for vagueness.

Since an injunction requiring a school

board to rehire a teacher for a sub-

sequent year is clearly the only ade-

quate remedy in such a case, it should

follow a fortiori that when a nontenured

teacher has been dismissed in the middle

of a school year for a constitutionally

unacceptable reason, she is entitled to

reinstatement to her teaching position.

See Younger v. Harris, 401 U.S. 37, 47

note 4 (1971), where this Court noted

that its prior decisions enjoining state

officials from discharging employees on

the basis of unconstitutionally vague

statutes were predicated on the fact

"*** that any plaintiff discharged for

exercising his constitutional right ***

would have had no adequate remedy at

law ***," (Emphasis added.) If a

public employee who is discharged

because he fails to comply with an

unconstitutionally vague statute (which

- 16 - - 17 -

CONCLUSION

For the foregoing reasons, a

is exactly the situation in this case),

has “no adequate remedy at law," then

writ of certiorari should be issued to

review the judgment and opinion of the

Ninth Circuit.

clearly reinstatement is the only remedy

that can undo the wrong that was done.

In summary, the decision below

is squarely contrary to decisions from ‘ Respectfully submitted,

other circuits which have ordered rein-

CHARLES F. HINKLE

JERE M. WEBB

nontenured teachers who have been dis- 900 SW Fifth Avenue

Portland, Oregon 97204

e-- ~

statement as the proper remedy for

charged for constitutionally impermissi-

ble reasons, and it is inconsistent with Attorneys for Petitioner

this Court's decisions in the area of

nontenured teachers’ substantive constitu- June 19, 1975

tional rights. The case is a significant

one, for the decision below undermines

the principle that any remedy for an

unconstitutional discharge from public

employment that does not include rein-

statement is inadequate to vindicate the |

constitutional rights that are at stake |

and to protect the interests that §1983

is designed to serve.

=="

Al

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Peccy Burton, 7

Plaintiff-Appellant, |

vs. No. 73-1568

AMENDED

CascaDE ScuHoou District OPINION

Union Hicu Scxoot No. 5, et al.,

Defendants-Appellees. J

[March 28, 1975]

Appeal from the United States Distriet Court

for the District of Oregon

Before: LUMBARD,* MERRILL and WRIGHT,

Circuit Judges.

PER CURIAM:

This is an appeal by a non-tenured, homosexual schoolteacher

from a district court order granting her damages and attorney

fees for what was adjudged her wrongful dismissal, but refusing

to reinstate her to her old position. We affirm.

Appellant Peggy Burton began to teach at Caseade High School

in July 1970. She was in the second month of her second full

year as a teacher of biology, earth sciences, ecology, consumer

education, and business mathematics, and as supervisor and ref-

eree of girls’ sports activities. The defendant Federico, the school

principal, confronted her with information coming to him from

the mother of a student that appellant was a homosexual. At a

conference with Frederico and, again at an appearance before a

special school board meeting, appellant acknowledged that she was

a “practicing homosexual.”

At the meeting on October 18, 1971, a resolution was adopted

suspending Ms. Burton upon “recommendation of the administra-

*Senior Cireuit Judge of the Second Circuit.

A 2

2 Peggy Burton vs.

tion based on her admitting to be a homosexual.” Later, allegedly

on advice of counsel, the board revised its October 18 resolution

to read:

Peggy Burton be dismissed and the contract terminated as

a teacher in the district because of her immorality of being

a practicing homosexual.

This was done in order that the dismissal might comply more

closely with Ore. Rev. Stat. § 342.530(1)(b) (1971), which before

its repeal in 1973 provided:

Dismissal of teachers. (1) During the period of the contract

. . . the district school board shall dismiss teachers only for:

(b) Immorality;

Plaintiff initiated this action under 42 U.S.C. § 1983, seeking

declaratory relief that defendants had violated her civil rights

by their dismissal of her on account of her status as a practicing

homosexual. She also sought damages and reinstatement to her

teaching position. The district court sustained her claim that the

dismissal was improper because section 342.530(1)(b), the statute

upon which it was based, was unconstitutionally vague. However,

the court limited its relief to an award of money damages

amounting to the balance of her salary for the teaching vear

1971-72, one-half of her salary for the following teaching year,

and $750 for attorney fees and costs, along with an order that

the school expunge from its board mecting records and personnel

files all references to plaintiff's dismissal. The court refused to

order reinstatement to the teaching position.

Plaintiff appealed the district court’s refusal to order reinstate-

ment, and defendants cross-appealed from the money judgments

in plaintiff's favor. Heretofore, on November 13, 1974, we dis

missed the cross-appeal for failure to file a brief within the time

prescribed by rule, or at all.

This leaves only the question whether the district judge erred

in refusing to order that the plaintiff be returned to her old posi-

tion. In analyzing this question, we note that plaintiff had neither

tenure, nor even sufficient seniority to qualify for consideration

A 3

Cascade School District Union High School No. 5, et al. 3

for a three-year contract after the school year ended, under Ore.

Rev. Stat. § 342.508 (1971). Under Oregon law. her only “rights”

respecting reemployment at the end of the 1971-72 school year,

had the school board not wrongfully dismissed her during the

period of her contract, would have been governed by Ore. Rev.

Stat. § 342.513(1) (1974). which provides:

342.513 Rencwal or nonrenewal of contracts for following

year. (1) Each district school board shall give written notice

by March 15 of each vear to all teachers... . in its emplov

who are not under tenure or who are not eligible for a

three-year contract under ORS § 342.508 [of] the renewal or

nonrenewal of the contract for the following school year. In

case the district school board does not rene the contract,

the material reason therefor shall, at the request of the

teacher . . ., be spread upon the records of the school district

and the board shall furnish a statement of the reason for

nonrenewal to the teacher... . If any district school board

fails to give such notice by March 15, the contract shall be

considered renewed for the following school year at a salary

not less than that being received at the time of renewal... .

1Judge Lumbard’s dissenting opinion finds in the language of § 342.513

& judicially cognizable interest in reemployment, since “the statutory re-

quirement that it provide reasons for nonrenewal precludes ii from having

completely unfettered discretion since the board could not give a con-

stitutionally unacceptable reason.” However, the Board could not refuse

to rehire Ms. Burton for a constitutionally unacceptable reason even if it

were allowed to do so by Oregon law.

Conversely, so long as nothing under the applicable Oregon statutes

prevented the Board, acting in good faith, from refusing to rehire Ms.

Burton for any constitutionally acceptable reason, any interest that she

might have in renewal of her contract would be purely speculative. Her

“adequacy” as a teacher would be no guarantee of retention. We said

recently in Burdeaw v. Trustees, 507 F.2d 770, 774 (9th Cir. 1974) :

“Appellant has pointed to nothing in the statutes, or in the Statewide

rules, or in the regulations of the particular institution which state

that if he meets certain standards his reemployment is guaranteed.

Until tenure is obtained he may equal or exceed minimum require-

ments for evaluation and still the school may prefer to employ some-

one else for the position he seeks.”

Slip op. at 6.

The trial judge correctly refused to speculate whether the Board would

have ultimately refused to rehire appellant for some unconstitutional

reason, had she not been prematurely dismissed.

A 4

+ Peggy Burton vs.

Appellant was awarded the full salary she would have received

for that part of her contract following her unlawful dismissal

pursuant to an unconstitutional statute. We cannot say that the

district judge abused his broad equitable discretion in not also

ordering that Ms. Burton be aliowed to return to her teaching

post for a period at least equivalent to the unserved portion of

her contract.? The trial judge faced a difficult task of balancing

the appellant’s interest in completing her wrongfully terminated

one-year contract against the disruption which he may have felt

her reinstatement for a few months would inevitably cause to the

school district, the school’s staff, the student body, and the com-

munity in light of the long-standing nature of the controversy .®

Reinstatement of wrongfully dismissed teachers has occasionally

been required, without consideration of w'<ther or not they were

20f course, the granting or withholding of remedial relief is not wholly

discretionary with the trial judge. Cf. e.g., Union Tool Co. v. Wilson, 259

U.S. 107, 111-12 (1922) (Brandeis, J.), “The private or public rights

that the decree sought to protect are an important measure of the remedy.”

McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949).

Nevertheless, the trial judge is in the better position to determine

whether a remedy will adequately protect a litigant’s legally cognizable

interests. See discussion in text infra. He is also better able to ASSESS,

in a case such as this, whether his determination that the statutory basis

relied upon by the school board was constitutionally defective and de-

manded an award of damages to the wrongfully dismissed teacher, will be

& sufficient deterrent to future board actions impairing the school dis-

trict’s contractual obligations.

3Appellant suggests that

“(t]he district court may have made the not unreasonable assumption

that some degree of personal antagonism inevitably exists where a

person is discharged from his teaching assignment for reasons which

are based, at bottom, on the prejudices of school officials.

(Br. of Appellant at 16.)

However, she argues that even assuming the correctness of the district

court’s conclusion that her return to the classroom “wouldn’t work out,”

this still would not justify denying her reinstatement. She notes that

similar antagonism would also exist whether the teacher is fired because

she criticizes the school board, because she is black, or because her religious

convictions offend the majority of the townspeople. See Adickes v. S. H.

Kres> & Co., 398 U.S. 144, 234 (1970) (Brennan, J., concurring in part

and dissenting in part). Yet in such situations, some appellate courts have

found that back pay may not obviate the defendants’ obligation to rein-

state plaintiff, for “[t]he right sought to be vindicated is not a contractual

Cascade School District Union High School No. 5, et al. 5

tenured. This extraordinary equitable remedy has commonly been

imposed in factual situations involving racial discrimination, the

special target of federal and state legislation (and of three con-

stitutional amendments). See, e.g., Frarklin v. County School

Board, 360 F.2d 325, 327 (4th Cir. 1966) (where black teachers

only were dismissed upon merger of two previously segregated

schools, priority rehiring rights and damages were ordered due

to the discriminatory pattern of the dismissals).

The other common factual situation in which reinstatement has

been required involves the case in which dismissal appears to

have been in reprisal for the legal exercise of free expression in

a manner critical of the public employer. See Pred v. Board of

Public Instruction, 415 F.2d 851 at 859 (5th Cir. 1969). Cf.

Stewart v. Pearce, 484 F.2d 1031 (9th Cir. 1973).

However, even courts which have ordered reinstatement have

nonetheless intimated that the appropriate remedy may be influ-

enced by a careful weighing of all facts and circumstances.4 On

one, nor could it be since no right to reemployment existed. What is at

stake is the vindication of constitutional rights. . . .” Pred v. Board of

Publ. Instruction, 415 F.2d 851, 856 (5th Cir. 1969).

In this case, however, the nature of the constitutional right sought to be

vindicated is not such as to compel reinstatement frequently ordered in

response to racially motivated dismissals, or to those aimed at punishing

the exercise of free speech.

Ms. Burton challenged the vagueness of the statute which was relied

upon to justify her dismissal. The district court upheld her contention and

ruled the statute unconstitutional. At the same time the court awarded

damages in excess of the amount due on the unserved portion of her con-

tract. As discussed in text, infra, the district judge did not abuse his

discretion in finding that his order and award afforded both adequate

relief for the appellant and adequate protection against subsequent

attempts to dismiss teachers under provisions such as § 342.530(1) (b).

*See Pred v. Board of Public Instruction, supra, at 859:

“For on the facts must rest the determination of whether the denial

of a continuing contract was (a) a reprisal for these actions in ex-

pression of ideas, thoughts, or associations rather than permissible

nondiseriminatory professional evaluations and, if so, (b) whether

under the circumstances in relation to the reasonable demands of a

system of organized responsible learning these actions were pro-

tected. On a finding of (a) and (b), the remedy (c) might well also

depend on all of the facts.”

A 6

6 Peggy Burton vs.

the facts presented in the case before us, we cannot say that an

award limited to monetary damages was inadequate for a wrong-

ful dismissal, under an unconstitutionally vague statute, of a non-

tenured teacher.

The common thread running through the cases in which rein-

statement was directed after appellate review seems to be that such

relief is necessary, not only to redress injury to the complainant

but also to discourage school systems from taking similar action

against other teachers in the future. As noted previously, we

cannot say that plaintiff was denied adequate compensation for

her claimed interests in finishing the school year. Nor can we say

that the district judge erred in concluding impliedly that declara-

tory relief and damages would provide a sufficient deterrent to

future board attempts to dismiss teachers serving annual appoint-

ments on the basis of “immorality.”

Our holding is not inconsistent with Board of Regents v. Roth,

408 U.S. 564 (1972). There, the Supreme Court suggested that a

refusal to rehire a nontenured teacher on the basis of “immorality”

would at least require a hearing at which the teacher had an

opportunity to refute this charge which might stigmatize his repu-

tation in the community. Here, Ms. Burton was given a hearing

at which she freely admitted her homosexuality, and the district

court repudiated the school board’s attempt to justify its dismissal

of her by characterizing this condition as “immoral.” The basis

for any possible stigma has been eliminated.5

Appellant was granted full pay for the loss resulting from the

wrongful termination of her one-year contract. And although the

parties have stipulated that Ms. Burton was an “adequate teacher,”

5See Burdeau v. Trustees, 507 F.2d 770, 773 (9th Cir. 1974).

We do not address the question whether the school district could re-

fuse to rehire appellant, or whether any other school system could refuse

to give her a teaching position, solely on the basis of her homosexual

inclinations. Compare McKeand v. Laird, 490 F.2d 1262, 1265 (9th Cir.

1973) (dictum) and Andrews v. Drew Municipal Separate Sch. Dist., 371

F. Supp. 27 (N.D. Miss. 1973) with Wentworth v. Schlesinger, 490 F.2d

740, 754 (D.C. Cir. 1973), and Safransky v. State Personnel Bd., 215

N.W.2d 379 (Wis. Sup. Ct. 1974). See also Perry v. Sindermann, 408

U.S. 593, 597-98 (1972). But see Pettit v. State Board of Education, 10

Cal.3d 29, 36 n.7, 513 P.2d 889, 894 n.7, 109 Cal. Rptr. 665, 670 n7

(1973).

A 7

Cascade School District Union High School No. 5, et al. 7

we cannot say that her chances of reemployment were such as to

warrant our finding the same type of “property interest” in re-

employment which might require reinstatement of a tenured

teacher, or one under longer-term contract with the district.6 We

hold only that, given the speculative nature of any expectation of

reemployment appellant may have had,? the district judge’s award

of an additional half-year’s salary (above and beyond the back

pay award for the unserved portion of her original contract)

seems generous, and well within the lower bounds of his remedial

discretion.

The judgment of the district court is affirmed.

LUMBARD, Circuit Judge (dissenting) :

I dissent regarding the relief to which Ms. Burton is entitled.

Reinstatement is the appropriate remedy for an individual who

has been removed from her job in violation of the Constitution.

Most courts have not treated reinstatement as an “extraordinary

equitable remedy.” In fact, they have ordered reinstatement as a

matter of course, even in cases involving non-tenured teachers.

See, e.g., Gieringer v. Central School District No. 58, 477 F.2d

1164 (8th Cir.) (reversing unpublished distriet court decision ) ,

cert. denied, 414 U.S. 1001 (1973); Fisher y. Snyder, 475 F.2d

375 (8th Cir. 1973), affg. 346 F. Supp. 396 (D.Neb. 1972); Rolfe

v. County Board of Educ., 391 F.2d 77 (6th Cir. 1968), affg. 282

F. Supp. 192 (E.D. Tenn. 1966); Johnson vy. Branch, 364 F.2d

177 (4th Cir. 1966) (en bane) (reversing 242 F. Supp. 721 (E.D.

N.Car. 1965) ), cert. denied, 385 U.S. 1003 (1967); Chase v. Fall

Mountain Regional School Dist., 330 F. Supp. 388 (D.N.H. 1971);

Hanover Twp. Fedn. of Teachers v. Hanover Community School

Corp., 318 F. Supp. 757 (N.D. Ind. 1970), affd., 457 F.2d 456

(7th Cir. 1972); MeGee v. Richmond Unified School Dist., 306

F. Supp. 1052 (N.D. Cal. 1969). Cf. Doherty v. Wilson, 356 F.

Supp. 35 (M.D. Ga. 1973).

The majority seems to rely on three arguments to uphold the

district court’s refusal to reinstate Ms. Burton. First, it emphasizes

her lack of tenure which meant that she had no right to a renewal

8Cf. Jablon v. Trustees, 482 F.2d 997 (9th Cir. 1973).

7See note 1 supra.

A 8

8 Peggy Burton vs.

of her teaching contract. This fact alone certainly does not pre-

clude reinstatement, as the cases cited above amply demonstrate.

Moreover, Ms. Burton did have some rights under her contract

with the school system. Unlike the teacher in Board of Regents v.

Roth, 408 U.S. 564 (1972), in which the Supreme Court held that

& hearing was not required when a school system decided not to

renew a non-tenured teacher’s contract, Ms. Burton had the right

under Oregon law to demand written reasons for nonrenewal of

her contract. Ore. Rev. Stat. § 342.513(1) (1974). While the

school board would have wide discretion in deciding whether to

renew Ms. Burton’s contract, the statutory requirement that it

provide reasons for non-renewal precludes it from having com-

pletely unfettered discretion since the board could not give a

constitutionally unacceptable reason. E.G., Perry v. Sinderman,

408 U.S. 593, 598 (1972) (“[T]he nonrenewal of a nontenured

public school teacher’s one-year contract may not be predicated

on his exercise of First and Fourteenth Amendment rights.”) ;

Board of Regents v. Roth, supra, at 573-74 (certain procedural

safeguards are required if state action imposes a “stigma or other

disability that foreclose{s] . . . freedom to take advantage of

other employment opportunities” or puts a “person’s good name,

reputation, honor, or integrity” at stake). Thus it is inaccurate to

say that Ms. Burton had no rights beyond the one-year term of

her contract. But even if she had no rights, that does not mean

that reinstatement is inappropriate; courts have often reinstated

non-tenured teachers.!

Second, the majority contends that it was permissible perhaps

even appropriate, for the district judge to balance plaintiff’s

interest in the vindication of her constitutional rights against the

disruption and antagonism her reinstatement would cause.2 I dis-

1The fact that Ms. Burton was discharged pursuant to an unconstitu-

tional statute and was not discriminated against on racial grounds or was

not fired for exercising her First Amendment rights does not mean that she

is entitled to a lesser sort of remedy than would be available in racial

discrimination or First Amendment cases. All violations of constitutional

rights should receive adequate redress, which in this case requires rein-

statement.

*The court assumes that there would be disruption and antagonism, but

there is no evidence that this would be so. On the contrary, statements

made by appellant’s counsel at argument indicate that this would not be so

as to the student body.

A 9

Cascade School District Union High School No. 5, et al. 9

agree. It is clearly inappropriate to consider community resent-

ment in deciding whether to reinstate a person te a position from

which she was unconstitutionally removed. Sterzing v. Fort Bend

Independent School Dist., 496 F.2d 92, 93 (5th Cir. 1974) (per

curiam) (“Enforcement of constitutional rights frequently has

disturbing consequences. Relief is not restricted to that which will

be pleasing and free of irritation.”); Langford v. City of Tex-

arkana, 478 F.2d 262, 267-68 (8th Cir. 1973). If community re-

sentment was a legitimate factor to consider, few Southern school

districts would have been integrated. One of the major purposes

of the Constitution is to protect individuals from the tyranny of

the majority. That purpose would be completely subverted if we

allowed the feelings of the majority to determine the remedies

available to a member of a minority group who has been the victim

of unconstitutional actions.

Finally, the majority asserts that the monetary award given to

Ms. Burton by the district court is adequate. Once again I dis-

agree. It is questionable whether a monetary award is sufficient

to deter the school board from taking similar unconstitutional

action in the future. After all, what the board wanted was to be

rid of Ms. Burton and the district court judgment allows it to

accomplish that. If a similar situation arises in the future it might

well conclude that it would be willing to pay a few thousand

dollars in order to be rid of an unwanted teacher.

However, the real issue is not whether the remedy imposed here

will deter the school board from taking similar action in the

future. The real “sue is how best to vindicate Ms. Burton's

rights. She had a contract to teach for one year. The only way to

restore to her what she lost is to require the school board to

reinstate her as a teacher for one year. As the Fifth Circuit noted

3The case cited by the majority for the proposition that all circum-

stances should be weighed to determine whether reinstatement is appro-

priate, Pred v. Board of Public Instruction, 415 F.2d 851, 859 (5th Cir.

1969), primarily /iolds that a careful weighing of competing interests is

required to determine whether the First Amendment rights of a teacher

critical of the school system have been violated when the teacher is dis-

charged. I do not think that it is the view of the Fifth Cireuit that a

weighing of interests is appropriate in determining a remedy once a

constitutional violation has been established. See Sterring v. Fort Bend

Independent School Dist., supra.

A 10

10 Peggy Burton vs.

in Pred v. Board of Public Instruction, 415 F.2d 851, 856 (1969) :

“The right sought to be vindicated is not a contractual one... .

What is at stake is the vindication of constitutional rights... .”

The Fourth Circuit has concluded : “There was no lawful basis for

the . . . discharges, and the plaintiffs are entitled to be restored

to the positions they occupied when they attempted to assert their

rights... .

Otherwise they would not be made whole, and similar discrimi-

natory discharges would be encouraged.” Smith v. Hampton Train-

ing School for Nurses, 360 F.2d 577, 581 (1966) (en banc), revg.

243 F.Supp. 403 (E.D. Va. 1965).

I would remand the case to the district court with instructions

that the board be directed to reinstate Ms. Burton for a one-year

period at the beginning of the next school year.

PERNAU-WALSH PRINTING CO., SAN FRANCISUU 4-4-75—400

All

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEGGY BURTON,

Plaintiff-Appellant,

No. 73-1568

Vv.

UNION HIGH SCHOOL NO. 5,

et al.,

Defendants-

)

)

)

)

)

CASCADE SCHOOL DISTRICT ) ORDER

)

)

)

)

Appellees. )

Before: LUMBARD, MERRILL and WRIGHT,

Circuit Judges.

The panel as constituted has

voted to deny the petition for rehearing.

Judges Merrill and Wright have voted to

reject the suggestion for rehearing en

banc.

The full court has been advised

of the suggestio: for an en banc hearing,

and no judge of the court has requested

a vote on the suggestion for rehearing

en banc. Fed. R. App. P. 35(b).

The petition for rehearing is

denied and the suggestion for a rehearing

en banc is rejected.

A 12

The panel opinion filed on

January 13, 1975 is withdrawn and an

Amended Opinion, filed herewith, is

substituted.

Filed: March 28, 1975

Docketed: March 31, 1975

A 13

IN THE UNITED STATES D

ISTRICT COURT

FOR THE DISTRICT OF OREGON

PEGGY BURTON,

Plaintiff,

vs.

CASCADE SCHOOL DISTRICT

UNION HIGH SCHOOL NO. 5;

LEONARD FEDERICO, indi-

vidually and as princi-

pal of Cascade Union High

School No. 5; FRED

ARCHER, individually and

as Superintendent of

Cascade School District

Union High School No. 5;

LeROY McGILL, ERVIN

KREJER, HERMAN HENRIKSON,

MERLE CRANE and CLARENCE

GOFFIN, individually and

as Board of Cascade

School District Union

High School No. 5,

Defendants.

OPINION

)

)

)

)

)

)

) January 18,

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Civil No. 72-334

1973

Jere M. Webb; Charles F. Hinkle,

c/o ACLU of Oregon, Inc.,

900 S. W. Pifth

Portland, Ore.

Clemens E. Ady,

210 Pacific Bui

Salem, Oregon 9

Avenue,

97204,

lding,

7301,

Attorneys for Plaintiff.

Robert W. DeArmond,

687 Court Street, N. E.,

Salem, Oregon 97301,

Attorney for Defendants.

SOLOMON, Judge:

Plaintiff was dismissed from her

teaching position at Cascade High School

because she is a homosexual. She seeks

relief under 42 U.S.C. § 1983. The case

is before me on her motion for summary

judgment.

Plaintiff began to teach in the

Cascade High School on July 1, 1970.

She was a full-time teacher during the

1970-1971 school year. In October, 1971,

after she commenced her second year of

teaching, the principal of the High

School learned that plaintiff was a

homosexual from the mother of a student.

There is no allegation that plaintiff

was derelict in her teaching duties or

that she made any homosexual advances

toward any student. After she acknow-

ledged that she was a "practicing homo-

sexual," the Cascade School Board termi-

nated her teaching contract pursuant to

ORS 342.530(1) (b), which provides:

A 15

Dismissal of teachers. (1) During

the period of the contract...

the district school board shall dis-

miss teachers only for:

(b) Immorality;

I find this statute unconstitution-

ally vague. "A statute which either

forbids or requires the doing of an act

in terms so vague that men of common

intelligence must necessarily guess at

its meaning and differ as to its appli-

cation, violates the first essential of

due process of law." Connally v. General

Const. Co., 269 U.S. 385, 391 (1926);

Cramp v. Bd. of Public Instruction, 368

U.S. 278 (1961).

This statute vests in the school

board the power to dismiss teachers for

immorality. However, the statute does

not define immorality. Immorality means

different things to different people,

and its definition depends on the idio-

syncracies of the individual school

board members. It may be applied so

broadly that every teacher in the state

could be subject to discipline. The

potential for arbitrary and discrimina-

tory enforcement is inherent in such a

Statute. See United States v. Reese, 92

ee

U.S. 214 (1875). ("It would certainly

be dangerous if the legislature could

set a net large enough to catch all

offenders, and leave it to the courts to

step inside and say who would be right-

fully detained and who should be set at

large." Id. at 221.)

A statute so broad makes those

charged with its énforcement the ar-

biters of morality for the entire com-

munity. In doing so, it subjects the

livelihood of every teacher in the state

to the irrationality and irregularity of

such judgments. The statute is vague

because it fails to give fair warning of

what conduct is prohibited and because

it permits erratic and prejudiced ex-

ercises of authority.? See Amsterdam,

The Void for Vagueness Doctrine in the

Supreme Court, 109 U. Pa. L. Rev. 67

(1960). No amount of statutory construc-

tion can overcome the deficiencies of

this statute.

l. ORS 342.530(1) (b) also presents

serious constitutional problems because

it does not require a nexus between con-

duct and teaching performance. Mindel v.

U. S. Civil Service Commission,

F. Supp. 485 (N.D. Cal. 1970).

Counsel are directed to meet within

the next 14 days and agree, if they can,

On an appropriate remedy. If counsel

fail to agree on a remedy, the Court

will hold a hearing to resolve this

issue.

Dated this 18th day of January,

1973.

/s/ Gus J. Solomon

United States District Judge

Partial Transcript of Proceedings in | UNITED STATES DISTRICT COURT

District Court Re Relief to be Granted,

February 1, 1973 ad FOR THE DISTRICT OF OREGON

PEGGY BURTON,

THE COURT: What is it you want?

MR. HINKLE: We seek reinstatement,

Your Honor, mainly, with back pay. Vv.

Plaintiff,

Civil No. 72-334

Those are the two chief elements of our CASCADE SCHOOL DISTRICT

request. *** Peggy Burton's concern is UNION HIGH SCHOOL NO. 5;

LEONARD FEDERICO, indi-

vidually and as principal

chance to go back. of Cascade Union High

: i School No. 5; FRED

THE COURT: I am not going to re ARCHER, individually and )

instate her. This is not the case for as Superintendent of Cas-)

cade School District )

Union High School No. 5; )

JUDGMENT ORDER

that she be reinstated and be given a

me ee ee ee ee eee ee

reinstatement. I am willing to give her

back pay and attorney's fees. It just LeROY McGILL, ERVIN )

, . KREJER, HERMAN HENRIKSON, )

wouldn't work out to reinstate this MERLE CRANE and CLARENCE )

woman in this little area. I am not GOFFIN, individually and )

, : as Board of Cascade

going to do it. So, if you can get Saheol District Gaice

together on the amount, fine; if not, I High School No. 5,

will set the amount.

ee eS

ee ee ee ee ee

Defendants.

This Court having heretofore found

that Oregon Revised Statute 342.530(1) (b)

was unconstitutional because of its vague-

ness and directed counsel for the respec-

tive parties to attempt to agree on an

appropriate remedy, and the Court being

advised that such an agreement could not

be reached, a hearing was held and the

_

A 20

Court finds that plaintiff was dismissed

by the School Board under an unconstitu-

tional statute and, therefore, her dis-

missal was invalid.

IT IS ORDERED that the defendant

school board shall pay to plaintiff the

balance of her salary for the teaching

year 1971-72 in the amount of $6,180.56,

and 50% of her salary for the teaching

year 1972-73, to-wit: $3,592.50, fora

total of $9,773.06 as damages.

IT IS FURTHER ORDERED that plain-

tiff shall not be reinstated to her

teaching position in defendant Cascade

Union High School District.

IT IS FURTHER ORDERED that the de-

fendant Cascade Union High School Dis-

trict, through its board of directors,

shall expunge from its records that por-

tion of the meeting relative to the dis-

missal of plaintiff, and shall expunge

all references to plaintiff's dismissal

from her personnel file.

IT IS FURTHER ORDERED that the de-

fendant school district shall pay to

+ Aenea

+e ee eee ME we

a ee

A 21

plaintiff on account of her attorney

fees and costs the sum of $750.00.

Dated this 2nd day of March, 1973.

gs/ Gus J. Solomon

enior United States District

Judge

Filed: March 6, 1973.