Petition — Conque v. Gauthe

Sepreme Court, U. 3.

FILED

a sa 1975

ODAK, JR.,CLERK

|

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-74 :

ALLEN CONQUE,

Petitioner,

versus

HAROLD GAUTHE, ET AL,

Respondents.

PETITION ON BEHALF OF ALLEN CONQUE FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS, FIFTH CIRCUIT

J. MINOS SIMON, LTD.

1408 Pinhook Road

Post Office Box 52116

Lafayette, Louisiana 70501

AC# 318-234-3263

TABLE OF CONTENTS

Page

EE ST SITE Sno cn vnc cuececssctucvcisens ii

ED oc viv adcccssueeeenedcunnneeseeevees 2

Se POD FORTE EED os cc csacseseccesceceoees 2

CONCISE STATEMENT OF THE CASE ....... 3-13

RULINGS OF DISTRICT COURT ............. 13-14

DECISION OF COURT OF APPEALS ......... 14-16

SUMMARY OF ARGUMENT .................. 16-17

PAR rn rE eer er ere 17-29

(a) Petitioner Has Been Denied of Procedural

8 re err Tree 17-24

(b) Petitioner Has Been Denied Equa! Protec-

SU Ge HD ID 6g oo cccecccccncccineesess 24-29

ED an une engbssnwenets se sesnseeuacas 29-30

CERTIFICATE OF SERVICE .................... 31

APPENDIX A — PER CURIAM DECISION

OF THE FIFTH CIRCUIT COURT OF

SPE ob 4 440064NCb00ReSeneeneeesceraes ... la-2a

APPENDIX B — UNITED STATES DIS-

TRICT COURT'S RULING ON MOTION

FOR SUMMARY JUDGMENT FILED BY

EE . ei ee bus Rees vebudeéaees Oak 66u8 3a-7a

APPENDIX C — UNITED STATES DIS-

TRICT COURT'S RULING ON DEFEN-

DANT’S MOTION TO DISMISS ............ 8a-15a

APPENDIX D — PLAINTIFF'S ORIGINAL

COMPLAINT FILED IN THE UNITED

STATES DISTRICT COURT, WESTERN

DISTRICT OF LOUISIANA ............... 16a-24a

il

TABLE OF CONTENTS (Continued)

APPENDIX E — PLAINTIFF'S MOTION

FOR SUMMARY JUDGMENT ................. 25a

APPENDIX F — JOINT AFFIDAVIT OF

DEFENDANTS CLAUSE, BROUSSARD,

AUCOIN, BARANCO, BONNET,

BOUDREAUX, CHAISSON, and

EEE ec apeuccutdecessuewenaanseeens 26a-28a

APPENDIX G — AFFIDAVIT OF PLAIN-

TIFF, ALLEN G. CONQUE (and COUNTER

PEED ctetveckcecccsdidnssenensenens 29a-33a

APPENDIX H — SUPERINTENDENT

GAUTHE’S LETTER OF JUNE 22, 1973, TO

ALLEN CONQUE ADVISING OF HIS

NA Do PPrrerrerrrTririre 33a-34a

TABLE OF CITATIONS

Cases:

Aswell v. Jackson Parish School Board, 176

RA sh mab aka teh aban Oe 17.27

Board of Regents v. Roth, 408 U.S. 564, 92S.Ct.

I I ok a rar ar ra ee 13,14,16,19,23

Goss v. Lopez, 95 S.Ct. 729, 736, 737 ... 16,19,20,21,23

Joint Anti-Trust Committee v. McGrath. 71

S.Ct. 649 (Frankfurter, J. concurring) .......... 20

Perry v. Sinderman, 408 U.S. 593 .............. 13.14

Schware v. Board of Bar Examiners of State

of New Mexico, 77 S.Ct. 752, 756 ................ 19

iii

TABLE OF CITATIONS (Continued)

Skinner v. State of Oklahoma (1942) 62 S.Ct.

ee cc cenenceseesnesecosees 29

State, Ex Rel McNeal v. Avoyelles Parish

School Board, (1942) 199 La. 859, 7 So.2d 165,

a ere ree err a eee er ernne 25,28

State of Missouri, Ex Rel Gaines v. Canada,

et al (1938) 59 S.Ct. 232, 236, 237,305U.S.337 ___.. 28

West Virginia v. Barnette, 63 S.Ct. 1178,1185...... 19

Wilderman v. Nelson, 467 F.2d 1173, 1176 ......... 23

Wisconsin v. Constantineau, 91 S.Ct.507,510... 16,19

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064,

SE MED docu cencdccvesccecanscevecseses 28

TABLE OF STATUTES

RARE, THUGS, GEG cscs ccececccveseuscnveceses 3

SE PE scnceucaceunessescsoececseses 24.25.28

42 U.S.C. Sections 1983, 1988, et al (Teachers’

ED none cucnbctpesésnnnsesenseseeseiedus 10

©

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

ALLEN CONQUE,

Petitioner,

versus

HAROLD GAUTHE, ET AL,

Respondents.

PETITION ON BEHALF OF ALLEN CONQUE FORA

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS, FIFTH CIRCUIT

TO THE HONORABLES, THE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE UNITED STATES

SUPREME COURT:

This is an application for a writ of certiorari to the

United States Court of Appeals, Fifth Circuit, as to its

per curiam decision rendered on March 14, 1975, time-

ly rehearing denied on April 15, 1975, affirming a deci-

sion of the United States District Court. Western Dis-

trict of Louisiana, whereby petitioner's Section 1983

action for injunctive relief was dismissed on motion

for summary judgment. Neither decision is officially

2

reported in the federal case reporter system. The per

curiam decision of the Court of Appeals is reproduced

in the Appendix at Page 1a-2a. The rulings of the Dis-

trict Court likewise are reproduced in the Appendix at

Pages 3a-15a.

JURISDICTION

| This application for a writ of certiorari invokes the

jurisdiction of the court pursuant to 28 U.S.C.A. 1254:

28 U.S.C.A. 2101 and Supreme Court Rules 19, et seq.

QUESTIONS PRESENTED

The essential issues of law presented by this

application are:

(a) Can state officials, while acting under

color of state law remove and/or demote a

nontenured teacher, employed in the public

school system, without a hearing or an oppor-

tunity fora hearing, where the removal and/or

demotion is based upon scandalous and de-

famatory accusations, which impute insub-

Ordination, incompetency, unprofes-

sionalism and moral turpitude to the teacher?

(b) Alternatively, can state officials, while

acting under color of state law, remove and/or

demote a tenured teacher, employed in the

public school system without a hearing or an

opportunity for a hearing, where applicable

State laws proscribe such removal and/or

demotion without a hearing?

3

CONCISE STATEMENT OF THE CASE

For more than three years preceding the wrongful

conduct mentioned in his complaint, petitioner was a

teacher of general science in the public school system

of Louisiana employed by the Lafayette Parish School

Board and discharged his duties as such in Lafayette

Parish, Louisiana. According to the Teachers’ Tenure

Act of Louisiana (LSA-R.S. 17:441, et seq.) each

teacher must serve a probationary term of three years

to be reckoned from the date of his first appointment in

any parish in the State of Louisiana. In the absence of

discharge during such probationary period, the

teacher automatically becomes a regular and perma-

nent teacher. Such a permanent teacher cannot be re-

moved from his position except upon written and

signed charges, and then only if found guilty after a

hearing conducted by the school board of the parish or

the city, as the case may be. At any such hearing the

teacher is entitled to have witnesses testify on his

behalf and to the assistance cf counsel and also enjoys

the right of appeal to a court of competent jurisdic-

tion. Petitioner was such a tenured teacher at all times

material to his lawsuit.

As a concomitant part of his duties as a teacher,

petitioner was employed and functioned as assistant

coach during the 1972-73 school session. He was paid

the sum of ONE HUNDRED THIRTY-THREE

AND 33/100 ($133.33) DOLLARS per month for his

services as assistant coach in addition to the compen-

sation which he received as a teacher of general

science. No person functions as a coach in the public

schools unless he is a certified teacher.

4

On June 1, 1973, Allen A. Dugas, principal of the

Carencro High School where petitioner discharged

his duties as teacher and coach, addressed a letter to

Harold Gauthe, superintendent of education of

Lafayette Parish and executive officer of the Lafayette

Parish School Board, concerning petitioner, re-

questing petitioner’s removal as head track coach.

Forasmuch as the letter forms the gravamen of the

complaint against petitioner for which he was dis-

missed as coach, the entire letter is essential to the es-

tablishment of the proper framework of consideration

of the issues presented by this application.

This letter reads as follows:

“Dear Mr. Gauthe:

‘Below are pertinent facts in relation to the

coaching situation at Carencro High School.

“I was appointed Principal at Carencro

High commencing school year 1965-1966. Dur-

ing the following two (2) years problems in the

coaching department began to develop.

This problem has existed at Carencro High

for the past seven (7) years. Constant friction

has been commonplace between the athletic

directors (Roy Veazey and Jerry Griffith) and

Head Track Coach George Allen Conque. In

my opinion Conque has had just one aim inall

these years and this has been to work only

with track. He has stopped at nothing to (and

has even stated this several times) just work

5

with track. This friction under two (2) Athletic

Directors (both at the old school and then into

the new) has worsened over the years even

though several conferences were held to try to

remedy the situation. A coaching staff must

work closely together. It must be a close knit

group. By working in this manner he has

isolated himself to the detriment of the whole

coaching staff.

“At the new school more problems arose

when Roy Veazey resigned and Coach Jerry

Griffith and Conque were candidates for the

position of Head Coach. Tremendous political

pressure was applied by the Conque family

even to the father calling me and making

threats to break my recommendation. Con-

ditions worsened after Coach Griffith was ap-

pointed to the job. Since that time Conque has

not ceased in his efforts to do anything which

would enhance his image and attempt to

destroy the other sports programs at Carencro

High.

“1. He has had parents involved in his

problems in coaching.

“2 He has used studenis whenever neces-

sary to fight his battles.

“3. He has gone to students and discussed

decisions made by the administration.

6

“4. He has disobeyed direct orders issued

by the administration. An example of this is

his giving his keys to students to go into the

boys’ gym without a supervising coach being

there. I have personally obtained his keys

from students (his son mainly) who had them

to get into the gym.

‘5S. He and his supporters never ceased in

issuing statements even after an agreement

was reached in March of 1972 that an attempt

would be made to work things out.

“Following is a list of items observed by the

school principal citing dates and names:

“1. February 25, 1973 — Gave cigarettes to

Buster Dupuis, supposedly for Buster to throw

away. Buster, when called to the office for dis-

cipline situation, claimed he was not told to

throw them away. He stated that the cigarettes

were offered to him and he took them.

“2. In a disagreement between Coach Bob

Fabre and student Blayne Brasseaux on

February 28, 1973, Conque tojd Blayne to go to

the principal's office and that he, Conque, had

witnesses that Coach Fabre had pushed the

student first. Very unprofessional.

‘3. Told students in track that we were go-

ing to fire him at the end of the year. Student

Doyle Moody questioned us about it. Caused

bad feelings among athletes. This was week of

February 24, 1973.

7

“4. March 5, 1973 — Permitted Student Kar]

Schexnayder (whose family strongly sup-

ports Conque) to practice track. Claims he did

not know Karl was suspended for fighting.

There is no way he could not know.

“5. Wednesday, March 8, 1973 — Left class

(3rd hour general science) unsupervised and

went home supposedly to take medicine. Con-

que stated to Assistant Principal Fourcade

that Miss Charlene Sellers, math teacher in an

adjoining room, was asked to supervise the

class. Miss Sellers denied this. When the class

was checked by me I found it to be extremely

noisy and erasers were being thrown by stu-

dents at each other. I talked to Conque about

this situation and he stated Miss Laurette

LaBarre was asked to supervise the class

when he left. Miss LaBarre denied this.

“6. Repeatedly does not store athletic

equipment after usage.

“7. Student Chuck Comeaux came to talk to

me about his grade in general science. He said

Conque was partial. Gave grades to others and

chances to make up tests to others but not to

him. In conference Conque agreed to give him

another chance. This was Conque’s decision.

When Chuck made up the work Conque re-

fused to consider the work. Conque said he had

changed his mind and just wanted to prove to

the boy that he could do the work. I told Conque

I disagreed with him on procedure.

8

“8. Purchased $100 of trophies for a prac-

tice track meet of March 16, 1973, without a

purchase order (or discussing this matter with

the athletic director). Conque was told as other

teachers were told about use of purchase or-

ders. This meet was re-scheduled for Sunday

March 18, 1973. Athletic Director Griffith told

Conque no trophies because it was a dual

meet. Trophies were given regardless. No

team points and no winner declared.

“9. Randy Broussard, 9th grader, was on

the Junior varsity team. He was removed for

missing practice. Without discussing why

with Coach Fabre, Junior Varsity Coach, he

was placed on the Varsity Squad.

“10. Coach Conque has been signing my

name to eligibility lists for track boys. This

was done in 1972 as well as 1973. I signed some.

He signed others. Claiming he thought it was

all right. These lists are required by the State

Athletic Association.

“11. For state meet on May 11, 1973 left at

12:20 with five (5) students who participated.

Took along one son who did not participate

and at least one other student (Kevin Cormier)

who was notexcused nor was hea participant.

“12. Left school without permission on

May 15, 1973 at 3:15 P.M. Teachers are

sometimes given permission to leave early

when requested. I talked with the Head Coach,

9

Assistant Principal and no permission re-

quested.

“13. Coaches are instructed never to leave

students in gym when coaches not there. A

faculty meeting wascalled. Head Coach and

assistant locked gym to attend meeting. This

was May 24, 1973. Coach Conque permitted

track boys to dress out in gym by themselves

while meeting was on.

This situation has lead to a definite division

of the coaching staff and the student body. I

have held several conferences with the

coaches and individual conferences with Con-

que. This as well as meeting with members of

the School Board at a special meeting in

March of 1972 and several meetings with the

Superintendent did not help as many of the

situations described above occurred and the

situation worsened.

“In view of the above stated facts and as I

have already stated in previous letters itis my

recommendation that George Allen Conque be

removed as Head Track Coach at Carencro

High School.

Sincerely,

/s/ ALLEN A. DUGAS

Allen A. Dugas, Principal”

10

Responding to Dugas’ written complaint, on June 22,

1973, Superintendent Gauthe acting with the au-

thority and approval of the Lafayette Parish School

Board members, ordered the removal of petitioner as

coach ‘‘due to your apparent incompatibility to func-

tion as a member of the total coaching staff and your

sometime insubordinate attitude and upon the recom-

mendation of the principal of Carencro High School

eeevr

Upon notice of his removal petitioner, invoking 42

U.S.C. Sections 1983 and 1988, et al, instituted an action

in the United States District Court seeking injunctive

relief and reinstatement. In his complaint, (See

Appendix, Pages 16a-24a) petitioner asserted that his

discharge was “based upon false and scandalous

allegations” damaging to his ‘reputation as a person

and as a member of the teaching profession, involving

questions of moral turpitude, insubordination, un-

professionalism and professional incompetence”. He

complained that defendants had “willfully accepted

the scandalous ex parte statements” lodged against

him “without regard to the truthfulness thereof and

without making reasonable inquiry as to the verity” of

the statements. Petitioner further stated that “defen-

dants refused to conduct a hearing or even to extend to

complainant an opportunity for a hearing for the pur-

pose of determining the truthfulness or not of the scan-

dalous accusations and assertions” made against him.

“Contrariwise,” petitioner further asserted, “defen-

dants herein by concerted and unilateral action ad-

judicated your complainant guilty of the scandalous

conduct aforesaid and thereupon condemned your

complainant as professionally unfit and unqualified

11

for the position of assistant coach of Carencro High

School and dismissed him and removed him from said

position and simultaneously deprived him of his in-

come of ONE HUNDRED THIRTY-THREE AND

33/100 ($133.33) DOLLARS per month.” Petitioner

finally complained that he had been deprived “of his

right of employment and of his right to a good profes-

sional repute without any valid reason whatever,

without any hearing, and without giving him the op-

portunity to be heard and to defend against the scan-

dalous charges” in violation of his due process rights.

In due course defendants filed a motion to dismiss.

Plaintiff filed a motion for summary judgment as to

the relief requested in numbered paragraphs 3 and 4 of

the prayer of his complaint (See Appendix, Page 25a).

The District Court overruled defendants’ motion, but

deferred ruling on plaintiff's motion pending receipt

of further information from defendants (See Appen-

dix, Page 3a-7a). Thereafter, defendants filed a motion

for summary judgment. The respective motions of the

parties were supported by the parties’ respective af-

fidavits. The thrust of the defendants’ affidavits left no

doubt that the scandalous accusations leveled against

petitioner by School Principal Dugas were taken into

consideration as a basis for petitioner's removal as

assistant coach. For example, the joint affidavit of

defendants Clause, Broussard, Aucoin, Baranco,

Bonnet, Boudreaux, Chaisson and Lastrapes (school

board members) in part asserts: (See Appendix, Page

26a-28a)

“Their vote to sustain the superintendent's

recommendation to relieve Mr. Conque of his

12

coaching duties was based upon Superin-

tendent Gauthe’s recommendation as con-

tained in his letter of June 22, 1973, * * *"

Superintendent Gauthe's letter of June 22, 1973, ex-

pressly states that plaintiff's removal as assistant

coach is based “upon the recommendation of the prin-

cipal of Carencro High School.” The “recommenda-

tion’ referred to is contained in principal Dugas’ let-

ter of June 1, 1973, which, after reciting the scandalous

accusations against plaintiff in thirteen (13) num-

bered paragraphs, concludes as follows:

“In view of the above stated facts and as I

have already stated in previous letters, it is

my recommendation that George Allen Con-

que be removed as head track coach at Caren-

cro High School.”

In opposition to defendants’ motion ad in support

of his own, plaintiff affirmatively stated in his af-

fidavit: (Appendix, Page 29a-33a)

“*** That defendants herein willfully ac-

cepted the scandalous ex parte statements of

said Dugas and others unknown to your af-

fiant without regard to the truthfulness

thereof and without making reasonable in-

quiry as to the verity of the scandalous

Statements made against affiant. Affiant fur-

ther states that said state officials refused to

conduct a hearing or even to extend to affiant

an Opportunity for a hearing, though affiant

requested the same, for the purpose of deter-

13

mining the truthfulness or not of the scan-

dalous allegations and accusations asserted

against your affiant, notwithstanding that one

of the members of the school board, Mr.

Preston J. Babineaux, made a formal motion

requesting that said scandalous accusations

be the subject of formal inquiry and full hear-

ing by the Lafayette Parish School Board.

“Affiant further stated that the scandalous

allegations and accusations mentioned herein

above are not true. As a result of said dis-

charge, your affiant was removed from the

position of assistant coach, which formed part

of his status.as a teacher, and also was de-

prived of the sum of $133.33 per month since

July 1, 1973, and has continuously been de-

prived of said income as the result of the

wrongful conduct of defendants in connection

with the captioned matter.”

RULINGS OF DISTRICT COURT

In rejecting defendants’ motion to dismiss, the Dis-

trict Court, relying upon Perry v. Sinderman, 408 U.S.

593, and Board of Regents v. Roth, 408 U.S. 564, held:

‘In this case, the letter addressed by Dugas

to the Superintendent of Schools levels a num-

ber of charges against plaintiff, which if they

were in fact the basis for his dismissal as

assistant coach, wouldbring him within the

Fourteenth Amendment's procedural protec-

14

tion of his liberty as that term is employed in

this provision of our basic law.”

Notwithstanding Sinderman and Roth, supra, and

the undisputed scandalous nature of the charges

employed as a basis to remove petitioner, the District

Judge granted summary judgment to defendants and

dismissed petitioner's action. In so doing, the District

Judge reasoned that “this case does not involve

questions of race, sex, or religion. There is no showing

whatsoever of any purposeful discriminatory act by

any board member individually, and suit against the

board itself will not lie,” though no such questions

were ever urged at any time by petitioner. In speaking

to Sinderman and Roth, supra, the District Judge fur-

ther held, “It is clear that not all rights to liberty en-

joyed by citizens in public employment are protected

by the due process clause of the Fourteenth Amend-

ment. It is where the State action is such as to label the

individual with a ‘badge of disgrace; under charges

against him of dishonesty or immorality, habitual

drunkenness or similar stigma of a degrading and de-

basing nature that due process must be afforded even

to nontenured employees. * * * That this is not the case

here is demonstrated by the fact that Mr. Conque is re-

tained even today as a class room teacher of general

science at Carencro High School.” Based upon such a

rationale, petitioner's action was dismissed.

DECISION OF COURT OF APPEALS

It is pertinent to emphasize that up to this point in

time petitioner, though removed from public employ-

ment as assistant coach upon the basis of scandalous

15

accusations, was granted a hearing neither by the

State officials who so removed him nor by the District

Court to which he applied for redress. Petitioner's

denial of any hearing as to the scandalous accusations

against him was not to end at the District Court level.

He was similarly denied of a hearing before the Court

of Appeals, Fifth Circuit.

On March 6, 1975, after his appeal was duly lodged

with the appellate court, acting pursuant to local Rule

18, the court transferred his appeal to the summary

calendar for disposition. Under such a procedure, no

oral arguments are permitted and the case is disposed

of on the briefs submitted by the parties.

In a short per curiam opinion, the appellate court

adopted the rationale of the District Judge. Insodoing

the court said:

(See Appendix, Page 1la-2a)

“Judge Putnam found that Conque had no

property right at stake in his position as coach

because he had neither tenure in that position

nor expectation of continued employment.

Moreover, the ‘scandalous and defamatory ac-

cusations’ were not such as to deprive him of

liberty. That factor is clear from his continu-

ed employment as a science teacher in Caren-

cro High School. * * *”

Accordingly, the judgment of the District Court was

affirmed.

16

Thus the courts below looked to the “weight” rather

than to the “nature” of the interest at stake in denying

petitioner's due process claims. In so doing, the lower

courts went contrary to the decisions of Board of

Regents v. Roth, supra, and Goss v. Lopez, 95S.Ct. 729.

SUMMARY OF ARGUMENT

There is no substantial dispute over the fact that

petitioner's removal as assistant coach at Carencro

High School wasbased upon scandalous accusations

detrimental to his personal and professional repute.

There is no substantial dispute over the fact that his

removal was brought about without a hearing as to the

accusations and without having given to petitioneran

opportunity to deny these accusations. “Where a per-

son's good name, reputation, honor, or integrity are at

Stake because of what government is doing to him,

notice and an opportunity to be heard are essential.”

Wisconsin v. Constantineau, 91 S.Ct. 507. Defendants

failed to grant petitioner a hearing. It is no defense, to

a charge of a denial of a hearing in such a circum-

Stance, that the victim is not subjected to a severe

detriment or grievous loss. In determining whether

due process requirements apply, the courts “must

look not to the ‘weight’ but to the nature of the interest

at stake.” Board of Regents v. Roth, 92 S.Ct. 2701; Goss

v. Lopez, 95 S.Ct. 729. Petitioner's dismissal, therefore,

exists in violation of his constitutional liberty. The

decision of the appellate court, therefore, must be re-

versed.

Alternatively, petitioner contends that he is a

tenured teacher and that his position as assistant

17

coach is a concomitant part of his professional posi-

tion. No alteration in that position, including any

deduction in salary, may be brought about by state

government action, without cause and without a hear-

ing. The alteration in his position and the consequent

deduction in his salary, without a hearing, constitutes

a demotion in his professional status proscribed by

state law. Aswell v. Jackson Parish School Board, 176

So.2d 741. Thus as a matter of state law, petitioner was

entitled to a hearing as to the cause of his firing. The

denial of such a hearing constitutes the denial of con-

stitutional equal protection.

ARGUMENT

(a) Petitioner Has Been Denied of Pro-

cedural Due Process

There exists no genuine issue as to the fact that

petitioner was a tenured teacher of general science in

the public school system of Louisiana and as a con-

comitant part of his teaching duties he was an assis-

tant coach. As assistant coach he was entitled to

receive and did receive ONE HUNDRED THIRTY-

THREE AND 33/ 100 ($133.33) DOLLARS a month. He

was removed from his position as assistant coach

effective July 1, 1973, with the consequent loss of ONE

HUNDRED THIRTY-THREE AND 33/100 ($133.33)

DOLLARS per month. Thus, his removal has brought

about forfeiture of his property right to ONE HUN-

DRED THIRTY-THREE AND 33/100 ($133.33)

DOLLARS a month.

18

This removal was brought about by the concerted

action of the defendants, and it appears undisputed (or

at worse there exists a genuine issue of fact) that

petitioner was removed from his position, without a

hearing, based pon scandalous accusations im-

puting insubordination, incompetency, unprofes-

Sionalism and moral turpitude to him. Principal

Dugas’ accusations are scathing and direct. For exam-

ple, in numbered paragraph 4 of his letter he states,

“He has disobeyed direct orders issued by the school

administration,” thus emphatically charging insub-

ordination. In numbered paragraph 10 he charges,

“Coach Conque has been signing my name to the

eligibility list for track boys,” thus imputing dis-

honesty. In numbered paragraph i he charges that

Conque, “gave cigarettes to Buster Dupuis” a minor,

thus accusing Conque of contributing to the delin-

quency of a minor. In numbered paragraph 2 Dugas

accuses Conque of being “very unprofessional.” In

numbered paragraph 5 Dugas speaks of Conque’s

leaving his class unsupervised, saying, “I talked to

Conque about this situation and he stated that Miss

Laurette LaBarre was asked to supervise the class

when he left. Miss LaBarre denied this,” thus brand-

ing Conque as a liar. Conque stood thus accused at the

time of his removal as assistant coach. He was remov-

ed without a hearing. His removal is the equivalent of

his conviction of the charges lodged against him.

There is at stake in this litigation, therefore,

petitioner's honor, reputation, and integrity as a

teacher and as a person.

| “Where a person's good name, reputation, honor or

integrity is at stake because of what government is do-

ing to him, notice and an opportunity to be heard are

19

essential.” Wisconsin v. Constantineau, 91 S.Ct. 507,

510: Board of Regents v. Roth, 92 S.Ct. at p. 2707; Goss

v. Lopez, 95 S.Ct. at p. 736. “The Fourteenth Amend-

ment, as now applied to the states, protects the citizen

against the state itself and all of its creatures * **

boards of education not excepted.’ West Virginia v.

Barnette, 63 S.Ct. 1178, 1185; Goss v. Lopez, 95S.Ct. at

P. 736.

The Fourteenth Amendment allows for no wooden

distinction among the occupations of citizens whose

rights are infringed by the state or its officers. “A state

cannot exclude a person from the practice of law or

from any other occupation in a manner or for reasons

that contravene the due process or equal protection

clause of the Fourteenth Amendment.” Schware v.

Board of Bar Examiners of the State of New Mexico, 77

S.Ct. 752, 756. Thus, the suggested bifurcation of

petitioner's employment into that of a teacher and that

of an assistant coach is of no significance in terms of

petitioner's due process rights as to his property and

his liberty. His function as assistant coach, even if it

may legally be divorced from his function as teacher,

nevertheless exists as a remunerative occupation. He

was employed by the State of Louisiana to engage in

that occupation. Louisiana agreed to pay him ONE

HUNDRED THIRTY-THREE AND 33/100 ($133.33)

DOLLARS eacn month for his services in the pursuit

of that occupation. This occupation brought him in

daily contact with students of Carencro High School.

As such he was entrusted with the guidance and

development of those students participating in the

sporting activities which he coached. Thus his good

name, reputation, honor and integrity were just as

20

valu ble and important to him as coach as they were to

him as teacher. Where a person's good name, reputa-

tion, honor or integrity is at stake because of what

government is doing to him, “the minimum re-

quirements of the [due process] clause must be satis-

fied.’ Goss v. Lopez, 95 S.Ct. at p. 736. The State of

Louisiana, acting through officers of the Lafayette

Parish School Board failed to satisfy the minimal re-

quirements of the due process clause in removing

petitioner as assistant coach.

“Fairness can rarely be obtained by secret, one-

sided determination of the facts decisive of

rights ... secrecy is not congenial to truth-

seeking and self-righteousness gives to

slander an assurance of rightness. No better

instrument has been devised for arriving at

truth than to give a person in jeopardy of ser-

ious loss notice of the case against him and op-

portunity to meet it.” Joint Anti-Trust Com-

mittee v. McGrath, 71S.Ct. at649 (Frankfurter,

J. concurring).

Petitioner has been stigmatized with a badge of in-

famy. This stigma has been inflicted upon him without

the opportunity to be heard or to refute the scandalous

charges giving rise to his removal. Such conduct of-

fends against petitioner's due process rights and must

be enjoined.

The rationale of the lower courts to the effect that

petitioner was not denied of his liberty, notwithstand-

ing the endemic scandalous nature of the accusations

against him, because those who have offended him

21

have continued him in his employment as a science

teacher, instances but the wrongful application of the

de minimis theory of constitutional law. Such a

postulate is not only at war with petitioner's federally

secured rights, but as petitioner observed in his

application for rehearing, is equivalent to saying that

a benevolent tyrant is guilty of nething for having

wounded his subject, simply because he elects not to

strike the fatal blow. The fact that the defendants, who

have publicly degraded him and on that account de-

prived him ofa portion of his income and removed him

as coach, have elected to continue him in his employ-

ment as a science teacher does not operate to erase the

scandalous accusations made against him nor to rec-

tify his good name, reputation, honor or integrity

which they have consummately besmirched. In short

the nature of the offense against petitioner is not in the

least altered by his continued employment as a

science teacher, however much one may debate the

mitigating weight which the continuance of the

employment as a teacher might have upon the dam-

age sustained by petitioner. The fact remains that he

has been charged and convicted without a hearing of

insubordination, incompetency, unprofessionalism,

and moral turpitude. Such a badge of infamy may not

be considered de minimis and may not be inflicted in

complete disregard of the due process clause. Goss v.

Lopez, supra.

A similar contention was urged upon the court in

Goss. There the court was dealing with due process

claims of high school students who had been suspend-

ed from school for ten days without a hearing for their

alleged involvement in a disturbance on school

22

premises. In urging the de minimis postulate, school

officials argued that “the loss of ten days, it is said, is

neither severe nor grievous and the due process

clause is therefore of no relevance.” In rejecting the

argument the court held: (95 S.Ct. at P. 737)

“Appellee’s (sic) argument is again refuted

by our prior decision; for in determining

‘whether due process requirements apply in

the first place, we must look not to the

“weight” but to the nature of the interest at

stake. Board of Regents v. Roth, supra, at570-

571, 92 S.Ct. at 2705-2706. Appellees were ex-

cluded from school only temporarily, itis true,

but the length and consequent severity of a

deprivation, while another factor to weigh in

determining the appropriate form of hearing,

‘is not decisive of the basic right’ to a hearing

of some kind. Fuentes v. Shevin, 407 U.S. 67, 86,

92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972). The

Court's view has been that as long as a prop-

erty deprivation is not de minimis, its gravity

is irrelevant to the question whether account

must be taken of the Due Process Clause.

Sniadach v. Family Finance Corp., 395 U.S.

337, 342, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349

(Harlan, J., concurring); Boddie v. Connec-

ticut, 401 U.S. 371, 378-379, 91 S.Ct. 780, 786, 28

L.Ed.2d 113; Board of Regents v. Roth, supra,

408 U.S. p. 570 n. 8, 92 S.Ct. p. 2705. A 10-day

suspension from school is not de minimis in

our view and may not be imposed in complete

disregard of the Due Process Clause.

a

23

‘‘A short suspension is of course a far milder

deprivation than expulsion. But, ‘education is

perhaps the most important function of state

and local governments.’ Brown v. Board of

Education, 347 U.S. 483, 493, 74S.Ct. 686, 691, 98

L.Ed. 873, (1954), and the total exclusion from

the educational process for more than atrivial

period, and certainly if the suspension is for 10

days, is a serious event in the life of the

suspended child. Neither the property interest

in educational benefits temporarily denied

nor the liberty interest in reputation, which is

also implicated, is so insubstantial that

suspensions may constitutionally be imposed

by any procedure the school chooses, no

matter how arbitrary.”

Obviously if a ten day suspension from school is not

de minimis, the complete removal of a coach from his

position with a consequent loss of ONE HUNDRED

THIRTY-THREE AND 33/100 ($133.33) DOLLARS a

month cannot be considered de minimis, especially

where the removal is accompanied by the pervasively

scandalous charges involved in petitioner's situation.

The decision of the appellate court holding otherwise

is contrary to Goss and instances a misapplication of

the Roth principle as elaborated by Goss.

The Eighth Circuit decision in Wilderman v. Nelson,

467 F.2d 1173 exemplifies the more acceptable view of

the meaning of Board of Regents v. Roth, supra. In that

case Wilderman was discharged as a welfare case

worker for the Missouri division of public welfare

without a hearing. He sought reinstatement and

_ —— —

24

damages. The decision to dismiss him was “based on

your attitude towards the agency and the administra-

tion of the St. Louis City Welfare Office.” This decision

was supplemented by a letter forwarded to other

welfare officers which stated that Wilderman carried

out agency policies with “much criticism” and that his

termination resulted from his “inability to accept the

rules and regulations of the agency within the struc-

ture in which he was working.” Wilderman contended

that the decision and the letter constituted a stigma

that might foreclose future opportunities to practice

his chosen profession. The lower court summarily

dismissed the complaint. On appeal, however, that

decision was reversed. In reversing the court held that

“the record here does not establish beyond doubt that

the steps taken by the State of Missouri in discharg-

ing Wilderman did not infringe upon his liberty.” (467

F.2d at P. 1176)

The stigma in Wilderman pales in comparison to the

stigma that has been inflicted upon petitioner by

defendants. If Wilderman is correct law, then the deci-

sion of the Court of Appeals, Fifth Circuit, must be

reversed.

(b) Petitioner Has Been Denied Equal Protec-

tion of State Laws

On July 1, 1973, the effective date of petitioner's

removal as assistant coach, petitioner was a perma-

nent teacher within the contemplation of LSA-R.S.

17:443. As such he could not be removed from his posi-

tion “except upon written and signed charges * * * and

then only if found guilty after a hearing by the school

25

board of the parish or city as the case may be, which

hearing may be private or public, at the option of the

teacher.’ While defendants claim in their affidavits

and in argument that they have only “transferred”

plaintiff to another position, the undisputed fact

remains that they have removed him as assistant

coach. His removal as assistant coach has resulted in

a demotion of petitioner in both position and pay. Such

a demotion constitutes a removal within the meaning

of R.S. 17:443. Such a removal, therefore, cannot be ac-

complished except upon written and signed charges

‘and then only if found guilty after a hearing by the

school board of the parish.”’ State, ex rel McNeal v.

Avoyelles Parish School Board, 199 La. 859, 7 So.2d 165

1942). In McNeal the school board involved had

demoted McNeal from the position of principal to that

of teacher and reduced his salary from $190.00 per

month to $129.00 per month. The action was taken

without written assigned charges and without a hear-

ing. On appeal the Louisiana Supreme Court ver-

balized the issue presented in these words: (7 So.2d at

P. 166)

‘“*** The narrow issue presented to us for

determination is whether the Avoyelles

Parish School Board had the legal right to

demote the relator from the position which he

held and assign him to another teaching posi-

tion in the high school at a lesser salary

without complying with the provisions of Sec-

tion 48 of the Teachers’ Tenure Statute as

amended by Act No. 58 of 1936. The pertinent

portion of that section reads as follows:

26

‘* ‘No permanent teacher shall be remov-

ed from office except upon written and

signed charges of willful neglect of duty,

or of incompetency, or dishonesty, and

then only if found guilty after a hearing by

the school board of that parish in which

the teacher is employed;* * *’ ”

The school board contended that it had simply

demoted McNeal and, therefore, he was not entitled to

a hearing. The school board's position was articulated

by the court in these words: (7 So.2d at P. 166)

“The School Board admits, in the instant

case, that McNeal was demoted from his posi-

tion as principal to the position of teacher ata

lesser salary without any written charges be-

ing filed against him as provided by the above

quoted section. It maintains, however, that the

section is inapplicable because the words

‘removed from office’ as used therein con-

template only an outright dismissal of the

teacher and not a change to a lesser position

coupled with a reduction in salary.”

The Louisiana Supreme Court rejected that conten-

tion holding that removal as used in the statute in

question “included a demotion in office by assigning

the employee to a lower position in the same service at

a lower rate of compensation.” Adverting to its earlier

decision on the same question, the court further

observed: (7 So.2d at P. 167)

27

“It may be added that an indefinitive

suspension without pay simply amounts toa

removal and that a demotion, so far as it

carries with it a reduction of salary, is only an

indirect method of attaining the same end. For,

if a civil service employee may be ‘demoted’

once and his salary thus substantially reduc-

ed, he may of course be ‘demoted’ again and his

salary still further reduced, or (say) until it

vanishes altogether.’ ”

This decision was followed by Aswell v. Jackson

Parish School Board, 176 So.2d 741 (1965) decided by

the Court of Appeal for the Second Circuit of

Louisiana. Teacher Aswell was “transferred” by the

school board from the ‘“‘principalship at the Quitman

High School to Director of Guidance Services and

Supervisor of Adult Education on a 12-month basis at

the same sa ary he received as Principal effective

August 31, 1964."’ The defendant school board contend-

ed that the transfer did not constitute “either a demo-

tion in professional status or a reduction of salary,

and, therefore, was not prohibited by the provisions of

the Teachers’ Tenure Act.’ While there was not a

reduction in salary as conceded by Aswell, the uncon-

tradicted evidence was that Aswell was not possessed

of the required qualifications for the position to which

he was transferred and consequently “it will be

necessary for him to return to school for further study

in order to acquire the number of ‘points’ or ‘credits’

which would permit him to hold such position on a

permanent basis.’ The court then observed that the

transfer “imposed a burden which was not necessary

to the continuance of his former position” and con-

cluded, therefore, that the transfer indeed constituted a

demotion or change in status that could not be effec-

tuated without a hearing as contemplated by the

Teachers’ Tenure Act.

The removal of Mr. Conque from his position as

coach constituted a demotion “so far as it carries with

it a reduction of salary” (McNeal, 7 So.2d at P. 167) and

thus constitutes a removal within the meaning of the

Louisiana Teachers’ Tenure Act. Such a removal or

demotion could be accomplished by defendants only

by the filing of written charges and the conducting ofa

hearing at which “the teacher shall have the right to

appear before the board with witnesses in his behalf

and with counsel of his selection, all of whom shall be

heard by the board at the said hearing” pursuant to

LSA-R.S. 17:443. Defendants singularly failed to

prefer written charges and to conduct such a hearing.

In so doing, they have deprived Mr. Conque of the

equal protection of state laws in violation of the

provisions of the Fourteenth Amendment.

In addressing itself to the meaning of the phrase

“equal protection of laws,” the court in State of Mis-

souri ex rel Gaines v. Canada, et al, (1938),59S.Ct. 232,

236, 237, 305 U.S. 337, said: “The equal protection of the

laws is ‘a pledge of the protection of equal laws’. Yick

Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 1070, 30 L.Ed.

220. Manifestly, the obligation of the State to give the

protection of equal laws can be performed only where

its laws operate, that is, within its own jurisdiction. It

is there that the equality of legal right must be main-

tained. That obligation is imposed by the Constitu-

tion upon the States severally as governmental enti-

ties, — each responsible for its own laws establishing

the rights and duties of persons within its borders.

* * #’’

Again in Skinner v. State of Oklahoma (1942), 62

S.Ct. 1110, 1113, 316 U.S. 535, the court further observ-

ed:

“* ** The guaranty of ‘equal protection of

the law is a pledge of the protection of equal

laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6

S.Ct. 1064, 1070, 30 L.Ed. 220. When the law lays

an unequal hand on those who have committed

intrinsically the same quality of offense and

sterilizes one and not the other, it has made as

an invidious a discrimination as if it had

selected a particular race or nationality for

oppressive treatment.”

Forasmuch as petitioner's right to employment has

been denied by defendants in violation of petitioner's

constitutional right to equal protection of state laws,

his removal from office is, therefore, null and void and

his reinstatement must be ordered.

CONCLUSION

Petitioner respectfully requests that this court

reverse the judgment of the Court of Appeals, Fifth

Circuit, and grant summary judgment in his favor en-

joining defendants from continuing and/or main-

taining his removal and dismissal as assistant coach

of Carencro High School without a meaningful hear-

ing as contemplated by the Due Process Clause of the

Fourteenth Amendment, and further commanding and

directing defendants to reinstate petitioner as assis-

30

tant coach of Carencro High School, Louisiana,

retroactive to the date of his wrongful dismissal or

removal, i.e., July 1, 1973, together with all of the

emoluments, rights and privileges including compen-

sation due from July 1, 1973, at the rate of ONE HUN-

DRED THIRTY-THREE AND 33/100 ($133.33)

DOLLARS a month and to continue him in his capaci-

ty and in his prior employment thereafter subject to

removal only for valid cause and after a meaningful

due process hearing; alternatively, that this cause be

remanded to the lower court with direction to grant

petitioner injunctive relief and reinstatement with

back pay as prayed for or that a hearing on the merits

be conducted for the purpose of adjudicating

petitioner's claim to injunctive relief and reinstate-

ment with back pay as prayed for.

Respectfully submitted,

J. MINOS SIMON, LTD.

Attorney for Petitioner

1408 Pinhook Road

Post Office Box 52116

Lafayette, Louisiana 70501

AC #318-234-3263

_ J. MINOS SIMON

31

CERTIFICATE OF SERVICE

I, J. Minos Simon, counsel for petitioner in the

foregoing application for writ of certiorari to the Unit-

ed States Court of Appeals, and a member of the bar of

the Supreme Court of the United States, hereby certify

that on the ____ day of July, 1975. I served a copy of the

foregoing petition for writ of certiorari on Mr. John F.

Ward, counsel of record for defendants, by mailing a

copy of same to his address of 770 North Street, Baton

Rouge, Louisiana, postage prepaid, and properly ad-

dressed.

Lafayette, Louisiana, this ___ day of July, 1975.

J. MINOS SIMON

la

In the United States Court of Appeals

For the Fifth Circuit

No. 74-3369

*Summary Calendar

ALLEN G. CONQUE,

Plaintiff-Appellant.

versus

HAROLD GAUTHE, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Louisiana

(March 14, 1975)

Before WISDOM, BELL and CLARK, Circuit Judges.

PER CURIAM:

This case arises out of the Lafayette Parish School

Board's transfer of Allen G. Conque from the position

of general science teacher and assistant coach to the

position of general science teacher at Carencro High

School. Conque, who continues to be employed as a

science teacher at Carencro, brought this Section 1983

action to enjoin his employers from relieving him of

Rule 18. 5 Cir.. Isbell Enterprises. Inc. v. Citizens Casualty

Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.

2a

his position as coach and to compel them to reinstate

him in that position. The theory of his Section 1983

claim is that his removal was based on “scandalous

and defamatory accusations” and that he was entitled

to a hearing.

The district judge granted summary judgment for

the defendants. Judge Putnam found that Conque had

no property right at stake in his position as coach

because he had neither tenure in that position nor ex-

pectation of continued employment. Moreover, the

“scandalous and defamatory accusations’ were not

such as to deprive him of liberty. That fact is clear

from his continued employment as a science teacher

at Carencro High School. See Board of Regents v.

Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548;

Perry v. Sindermann, 1972, 407 U.S. 593, 92 S.Ct. 2694,

33 L.Ed.2d 570, Robinson v. Jefferson County Board of

Education, 5 Cir. 1973, 485 F.2d 1381; Ferguson v.

Thomas, 5 Cir. 1970, 430 F.2d 852.

The judgment of the district court is AFFIRMED.

3a

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

ALLEN CONQUE

versus C.A. No. 74-166

HAROLD GAUTHE, et al

(Filed: Aug. 21, 1974)

RULING ON MOTIONS FOR

SUMMARY JUDGMENT

This case arises out of the dismissal of plaintiff as

assistant coach at Carencro High School, in the par-

ish of Lafayette. In our ruling of May 23, 1974, on defen-

dants’ motion to dismiss, we concluded that under the

express terms of the Louisiana Teacher Tenure Act,

LSA-R.S. 17:441 et seq., the position of coach or assis-

tant coach is not protected and plaintiff is to be con-

sidered for purposes of our decision as a nontenured

teacher. His expectancy of re-employment does not

rise to the level of a Constitutionally protected prop-

erty right falling within the due process clause of the

Fourteenth Amendment. Perry v. Sindermann, 408

U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Board of

Regents v. Roth, 408 U.S. 564, 92S. Ct. 2701, 33 L. Ed. 2d

548 (1972); Thaw v. Board of Instruction, Dade County

4a

Florida, et al, 432 F. 2d 98 (5 Cir. 1970); Skidmore v.

Shamrotk Ind. School District, 464 F. 2d 605 (5 Cir.

1972); Robinson v. Jefferson County Board of Educa-

tion, 485 F. 2d 1381 (5 Cir. 1973); Collins v. Wolfson, et

al, No. 73-3381 (5 Cir. 1974, not yet reported); Cf. Womer

v. Hampton, et al, No. 73-1494 (5 Cir. 1974, not yet

reported).

We held open the question of whether or not the ac-

tion of the defendants in dismissing plaintiff could be

sustained as a deprivation of plaintiff's liberty

without due process, because, on the face of the plead-

ings it appeared that such a possibility existed if the

charges contained in a letter addressed to the

Superintendent by Mr. Dugas, principal of Carencro

High School, were in fact the basis for his dismissal.

The matter is again before us on cross-motions for

summary judgment.

It now appears from the affidavit of the defendant

Superintendent and School Board members that

plaintiff was appointed assistant coach at Carencro

High during the 1971-72 school year. He holds the posi-

tion of classroom teacher in general science at that

school, under tenure. The coaching job pays $133.33

per month in addition to his regular teacher's salary.

The situation on the coaching staff at this school

became difficult during plaintiff's first year in this ex-

tra assignment. While the affidavits do not set out

specific facts, it is undisputed that the Super-

intendent had received complaints from the principal

as early as February, 1972, and on February 21 of that

year met with plaintiff, the principal and the other

coaches at the school, with eight members of the

5a

Board, and discussed the problems in depth. Plaintiff

was continued as assistant coach during the 1972-73

term, over the objection of the principal who recom-

mended his transfer from the school by letter dated

June 6, 1972. Throughout this period and during 1973

the Superintendent held several discussions with the

parties, and there is no doubt in the mind of the Court

that plaintiff was aware of the complaints against

him.

Finally, by letter dated June 1, 1973, Mr. Dugas wrote

the letter plaintiff contends was the basis for his dis-

charge. Plaintiff characterizes this document as con-

taining “scandalous and defamatory false allegations

damaging of your complainant's reputation as a per-

son and as a member of the teaching profession, in-

volving questions of moral turpitude, insubordina-

tion, unprofessionalism and professional in-

competency.” We do not believe the letter goes so far. It

sets out numerous incidents that the principal ob-

served himself as illustrative of the conduct of plain-

tiff as a coach, which the writer believed to be causing

division among students and staff.

The undisputed facts are that a situation arose at

Carencro High after plaintiff's coaching assignment,

that this situation was attributed to plaintiff, that the

Superintendent and a majority of the School Board

have attempted to mediate the personality differences,

that the principal's recommendation at the end of 1972

was rejected and the efforts to mediate continued, and

that as a result the Superintendent finally recom-

mended the “transfer” of Mr. Conque from “Head

Track Coach/ Asst. Coach/ General Science to General

6a

Science — Carencro High’, which was acted upon at

the Board's meeting of July 18, 1973. The reasons were

set out in the Superintendent's letter recommending

this step to the Board in letter dated June 22, 1973, ap-

proved by twelve of the thirteen members of the Board

then present.

In this respect, the defendant Board members acted

officially as Board members, the only manner by

which this reassignment could be made under the laws

of this state. This case does not involve questions of

race, sex or religion. There is no showing whatsoever

of any purposeful discriminatory act by any Board

member individually, and suit against the Board itself

will not lie. City of Kenosha v. Bruno, et al, 412 U.S.

507, 93 S.Ct. 2222, 37 L. Ed. 2d 109 (1973); Moor v. Coun-

ty of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d

596 (1973). That which cannot be done directly will not

be allowed indirectly.

Since Sindermann and Roth, supra, it is clear that

not all rights to liberty enjoyed by citizens in public

employment are protected by the due process clause of

the Fourteenth Amendment. It is where the State's ac-

tion is such as to label the individual with a “badge of

disgrace’, under charges against him of dishonesty or

immorality, habitual drunkenness, or similar

stigmata of a degrading and debasing nature that due

process must be afforded even to nontenured

employees. Collins, et al v. Wolfson, et al, supra, ——

F. 2d ___., at 6824 (5 Cir. 1974, not yet reported), and

cases cited above. That this is not the case here is dem-

onstrated by the fact that Mr. Conque is retained even

today as a classroom teacher of general science at

7a

Carencro High School. This is his field of profes-

sional certification.

For the foregoing reasons, plaintiff's motion for

summary judgment is denied, and the motion of the

defendants is granted.

It is accordingly ORDERED that plaintiff's suit

brought under 42 U.S.C.A. §§ 1983, 1988 and 28 U.S.C.A.

§ 1331(3), (4), be and the same is hereby dismissed.

Lafayette. Louisiana, August 21, 1974.

/s/ R. J. PUTNAM

United States District Judge

8a

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

CIVIL ACTION

NO. 74-166

ALLEN G. CONQUE

versus

HAROLD H. GAUTHE, et al

(Filed: May 23, 1974)

FOR PLAINTIFF

Messrs.

J. Minos Simon

Post Office Box 52116, O.C.S.

Lafayette, Louisiana 70501

FOR DEFENDANTS

John F. Ward, Jr.

770 North Street

Baton Rouge, Louisiana 70802

R. J. PUTNAM, DISTRICT JUDGE

9a

RULING ON MOTIONS

Plaintiff is a general science teacher at Carencro

High School, one of the public schools of Lafayette

Parish. He has been a certified teacher in this public

school system for more than three years, and as such

falls within the protection of the Louisiana teacher

tenure law, as a certified teacher of general science.

LSA-R.S. 17:441 et seq. Defendants are all of the mem-

bers of the Lafayette Parish School Board, except one,

Preston J. Babineaux, who is not named in the suit:

Harold Gauthe, Superintendent of Schools and Allen

A. Dugas, principal of Carencro High School, plain-

tiff's superior.

Jurisdiction is claimed under Title 28 U.S.C.

§§ 1343(3)(4), 2281 and 2284, and Title 42 U.S.C. § 1983

and 1988, and the prayer is for a three-judge court for

alleged constitutional infirmities in the teacher

tenure law of this state, among other things.

We have before us at this time the question of (1)

whether or not asubstantial constitutional question is

involved such as to warrant the extraordinary

procedure of a three-judge court, and (2) defendants’

motion to dismiss for failure to state a claim. Plaintiff

also filed a motion for summary judgment on May 2,

1974, which was set by special order for hearing on

May 8. Since the 20-day delay provided for by Rule 56,

F.R.C.P. 28 U.S.C. has not elapsed, we withhold action

on this issue pending a written waiver of the delays by

counsel for defendants.

10a

The allegations of fact set forth in the complaint

must be taken as true, and if plaintiff can prevail un-

der any view of such facts the motion to dismiss must

be denied. These allegations are to the effect that:

1. Inaddition to his position as aclassroom teacher

in his field of certification, he was employed as assis-

tant coach at Carencro High School, for which he was

compensated at the rate of $133.33 per month.

2. He was discharged from the coaching position

effective July 1, 1973.

3. The discharge was based upon “scandalous and

defamatory false allegations” contained in a letter

from his principal, Allen Dugas, to defendant Gauthe,

dated June 1, 1973, a copy of this letter being attached

to the complaint. .

4. That petitioner requested and was denied a

pretermination due process hearing, in violation of

rights to property and liberty secured to him by the

Fourteenth Amendment of the Constitution of the

United States.

We consider first the question of whether or not the

constitutionality of the Louisiana tenure law is prop-

erly before us, and, if so, whether the attack leveled

against it presents a substantial constitutional claim.

We conclude that it does not and that a three-judge

court is inappropriate.

en

ila

Conque admits in brief (p. 2) that he did not acquire

tenure in the position from which he was removed.

This is true. The term “teacher” as used in the tenure

law is defined as follows:

“As used in this sub-part, the word “teacher”

means any employee of any parish or city

school board who holds a teachers certificate

and whose legal employment requires such

teacher's certificate.”

There is no requirement that a coach hold a teacher's

certificate disclosed by our independent research, and

plaintiff cites no statute, regulation or express policy

requiring that persons so employed be certificated. He

cites discussions of Louisiana courts in State v.

Cameron Parish School Board, 202 So. 2d 34 (La. App.

1962). State ex rel DeBarge v. Cameron Parish School

Bd. (La. App. 1967), writ refused 251 La. 386, 204 So. 2d

572; Charbonnet v. Jefferson Parish School Board, 188

So. 2d 143 (La. App. 1966), relative to teachers in the

system who had been promoted to principal and then

removed without a hearing from the new position

prior to the expiration of three years. There plaintiffs

had all acquired tenure as teachers prior to promotion,

and a teaching certificate is required for the position.

DeBarge, supra, 202 So. 2d at 36.

The precise question here has never been presented

to the Louisiana courts. The analogy to an employee's

“status” as a principal is not valid, since coaches are

not required to be certified. For the purposes of as-

serting a protected right to property, we cannot say

that the law of Louisiana, from which such a right

12a ~~

must flow, affords this interest to coaches who serve

without tenure. We do not now undertake to decide this

question as a matter of state law. In an area where the

interests of the state in relation to its teachers must be

delicately weighed and balanced,' were it necessary to

do so, this court would abstain as suggested by the

concurring opinion of Mr. Chief Justice Burger in

Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33

L. Ed. 2d 570 (1972); 33 L. Ed. at 581. Cf. Board of

Regents v. Roth, 408 U.S. 564,92S. Ct. 2701.33 L. Ed. 2d

548 (1972), Sindermann’s contemporary forerunner.

Our conclusion on this issue is that a three-judge

court is not required, because under the alleged facts it

is not necessary to reach the issue.

II

Board of Regents v. Roth, supra, and Perry v. Sin-

dermann, supra, carefully spell out the bounds within

which even a nontenured teacher may be entitled to a

due process pretermination hearing. In this case, the

letter addressed by Mr. Dugas to the Superintendent of

Schools levels a number of charges against plaintiff

which, if they were in fact the basis for his dismissal

aS assistant coach, would bring him within the Four-

teenth Amendment's procedural protection of his lib-

erty as that term is employed in this provision of our

basic law.

“While this Court has never attempted to

define with exactness the liberty .... guar-

1 See. for example, Pickering v. Board of Education, 391 U.S. 563.

88 S. Ct. 1731. 20 L. Ed. 2d 811 (1968).

ee eee

13a

anteed [by the Fourteenth Amendment] the

term has received much consideration, and

some of the included things have been def-

initely stated. Without doubt, it denotes not

merely freedom from bodily restraint but also

the right of the individual to contract, to

engage in any of the common occupations of

life, to acquire useful knowledge, to marry, es-

tablish a home and bring up children, to

worship God according to the dictates of his

own conscience, and generally to enjoy those

privileges long recognized .. . as essential to

the orderly pursuit of happiness by free men

... (citations omitted).

“There might be cases in which 2 State refused

to re-employ a person under such cir-

cumstances that interests in liberty would be

implicated. But this [Roth] is not such acase.

“The State, in declining ti rehire the respon-

dent, did not make any charge against him that

might seriously damage his standing and

associations in his community. It did not base

the nonrenewal of his contract on acharge, for

example, that he had been guilty of dishones-

ty, or immoraiity. Had it done so, this would be

a different case. For [w]here a person’s good

name, reputation, honor or integrity is at

stake because of wnat the government is doing

to him, notice and an opportunity to be heard

are essential,’ ... (citations omitted) ... In

such a case, due process would accord an op-

portunity to refute the charge before Uni-

14a

versity officials.”’ Board of Regents v. Roth,

supra, 33 L. Ed. 2d at558 (emphasis supplied).

In the case at bar, the letter alleged to be the basis for

petitioner's discharge, at the very least, charges Con-

que with professional incompetence.? One Louisiana

court has recognized the import of such a charge

against a teacher in these words:

“While the School Board has the right, or-

dinarily, to transfer Relator from his position

as Principal of East Jefferson High School to

that of Supervisor of Child Welfare and Atten-

dance... his appointment to such office does

not make moot his removal from the position

of Principal ...on the ground of incompeten-

cy, since such cause for removal, unless

nullified by this court, would constitute a per-

manent degrading of elator and a blot on his

record.” State ex rel Charbonnet v. Jefferson

Parish Schco! Board, supra, 188 So. 2d at 145.

(Emphasis supplied.)

Roth and Sindermann, supra, contain exhaustive

reviews of the authorities. The principle is a logical

consequence of the doctrine of Roth and Sindermann,

supra, and has been recognized by the Fifth Circuit

Court of Appeals in Moore v. Knowles, 482 F. 2d 1069

(1973), by way of dicta, while the Eighth Circuit, in

Wilderman v. Nelson, 467 F. 2d 1173 (1972) has ex-

2 Itis not necessary to reiterate these charges in this opinion. We

take judicial notice of the fact that there has already been con-

siderable publicity in the area concerning this controversy, and

direct the attention of all attorneys to DR7-107, A.B.A. Code of Pro-

fessional conduct for future reference.

a RE ne

15a

pressly applied it. The cases relied upon by defendants

in this case did not deal with a situation where express

charges were made against the nontenured teacher

impinging upon his right to liberty under the

Fourteenth Amendment, but rather turn on the point

that they had no property interest in re-employment

that was subject to protection.’

We cannot, therefore, grant defendants’ motion to

dismiss. The motion for summary judgment is held

over pending the information requested of defendants’

attorney as stated above.

IT IS SO ORDERED.

Lafayette, Louisiana, May 23, 1974.

/s/ R. J. PUTNAM

United States District Judge

3 We make no ruling on the merits, which must follow factual

evidence on the accuracy of plaintiff's allegations. We dodirect the

attention of all parties to footnote 12 in Roth, supra, 33 L. Ed. 2d at

558, 559. nor do we now determine the procedural aspects of the

hearing to which plaintiff may be entitled, although the procedure

outlined in LSA-R.S. 17:442 et seq. suggests itself as a logical vehi-

cle.

16a

United States District Court

Western District of Louisiana

Lafayette Division

ALLEN G. CONQUE

versus

HAROLD GAUTHE, HERMAN C. CLAUSE STAN-

LEY P BABIN, J. MAXIE BROUSSARD, GEORGE F.

DUPU,:s, SR., DANIEL AUCOIN, DR. R. A. BARAN-

CO, J. STEWART BONNET, JESSIE BOUDREAUX,

JR., JEROME J. BOURQUE, ALTON CHASSION,

DUDLEY LASTRAPES, JR. CHARLES S. PATTER-

SON, EARL VALLOT and ALLEN A. DUGAS

ORIGINAL COMPLAINT

JURISDICTION

The jurisdiction of this Court is invoked under Title

42, U.S.C.A., Sections 1983 and 1988; Title 28, U.S.C.A..,

Sections 1343(3)(4), 2281 and 2284.

PRELIMINARY STATEMENT

Complainant, Allen G. Conque, for more than three

years preceding the wrongful conduct mentioned

herein, has been a teacher of general science in the

public school system of Louisiana in Lafayette Parish,

Louisiana, employed by the Lafayette Parish chool

Board. According to the Teacher Tenure Act of

Louisiana (R.S. 17:441, et. seq.) each teacher must

serve a probationary term of three years to be reckon-

ed from the date of his first appointment in any parish

—_~.

BR Peni teet t

17a

in the State of Louisiana. In the absence of discharge

during such probationary period, such a probationary

teacher automatically becomes a regular and perma-

nent teacher in the employ of the school board of the

parish of employment where he has successfully serv-

ed his three-year probationary term. Thereafter sucha

teacher cannot be removed from office except upon

written and signed charges of willful neglect of duty,

or incompetency or dishonesty, or of being a member

of or of contributing to any group, organization, move-

ment or corporation that is by law or injunction

prohibited from operating in the State of Louisiana,

and then only if found guilty after a hearing by the

school board of the parish or city, as the case may be,

which hearing may be private or public, at the option

of the teacher. At any such hearing for removal, the

teacher is entitled to have witnesses testify on his

behalf and to the assistance of counsel and alsoenjoys

the right of appeal to acourt of competent jurisdiction.

As a prerequisite to employment as a teacher in the

public school system of Louisiana, a teacher must

possess a teacher's certificate recognized and/or

issued by the State Board of Education. Complainant

possesses such a certificate.

Complainant further states that as a concomitant

part of his duties as a teacher, he was employed by the

Lafayette Parish School Board during the 1972-73

school session as assistant coach at the Carencro

High School of Lafayette Parish, Louisiana, a school

forming part of the public school system of Lafayette

Parish, Louisiana. For his services as assistant coach

at the Carencro High School aforesaid, he was entitled

to and did receive compensation at the rate of ONE

HUNDRED THIRTY-THREE AND 33/100 ($133.33)

18a

DOLLARS monthly in addition to the compensation

which he received as a teacher of general science.

Complainant further alleges that he was discharged

from his position as assistant coach as

hereinaforesaid effective July 1, 1973, and this dis-

charge forms the central issue in controversy in this

litigation.

IDENTITY AND STATUS OF

PARTIES DEFENDANT

At all times material hereto Herman C. Clause,

Stanley P. Babin, J. Maxie Broussard, George F.

Dupuis, Sr., Daniel Aucoin, R. A. Baranco, J. Stewart

Bonnet, Jessie Boudreaux, Jr., Jerome J. Bourque,

Alton Chassion, Dudley Lastrapes, Jr., Charles S.

Patterson and Earl Vallot were and continue to be

members of the Lafayette Parish School Board and as

such state officials with full authority to hire and fire

teachers in connection with the educational system of

the State of Louisiana, Parish of Lafayette, Louisiana;

Harold H. Gauthe at all times material hereto was the

superintendent and/or acting superintendent of the

Lafayette Parish School Board, being essentially the

executive officer of the Lafayette Parish School Board

charged with the responsibility of superintending the

operations of all public schools in Lafayette Parish,

including the teachers in such school system; Allen A.

Dugas at all times material hereto was the principal of

Carencro High School of Lafayette parish, Louisiana.

WRONGFUL ACTS OF DEFENDANTS

Complainant alleges that defendants herein, while

acting in concert and under color of state law and ar-

19a

bitrarily exercising the power possessed by each by

virtue of such state laws removed your complainant

from the position of assistant coach effective July 1,

1973. Complainant states that said removal was based

upon scandalous and defamatory false allegations

damaging of your complainant’s reputation as a per-

son and as a member of the teaching profession,

involving questions of moral turpitude, insubordina-

tion, unprofessionalism and professional in-

competency.

Complainant states that his discharge was based

upon false and scandalous allegations and

accusations articulated by defendant Allen A. Dugas

and communicated to defendant Gauthe by said Dugas

in a letter dated June 1, 1973, a copy of which is annex-

ed hereto and made part hereof. The defendants herein

willfully accepted the scandalous ex parte statements

of the said Dugas and others unknown to your com-

plainant without regard to the truthfulness thereof

and without making reasonable inquiry as to the veri-

ty of the scandalous statements made against your

complainant. Said defendants refused to conduct a

hearing or even to extend to complainant an oppor-

tunity for a hearing for the purpose of determining the

truthfulness or not of the scandalous allegations and

accusations asserted against complainant herein, not-

withstanding that one of the members of the School

Board, Mr. Preston J. Babineaux, made a formal mo-

tion requesting that said scandalous accusations be

the subject of inquiry and full hearing.

Contrariwise defendants herein by concerted and

unilateral action adjudicated yourcomplainant guilty

of the scandalous conduct hereinaforesaid and

20a

thereupon condemned your complainant as

professionally unfit and unqualified for the position

of assistant coach of Carencro High School and dis-

missed him and removed him from said position and

simultaneously deprived him of his income of ONE

HUNDRED THIRTY-THREE AND 33/100 ($133.33)

DOLLARS per month as hereinaforesaid.

Complainant further states that there exists no valid

reason for the termination of his said employment.

That his employment as hereinaforesaid was ter-

minated without meaningful inquiry, without

supporting proof and without any hearing whatever.

As a consequence of the conduct of the defendants

herein, your complainant has been deprived and

denied of his right of employment and of his righttoa

good professional repute without any valid reason

whatever, without any hearing and without giving

him the opportunity to be heard and to defend against

the scandalous charges in violation of his rights,

privileges and immunities secured to him by the

Fourteenth Amendment to the United States Constitu-

tion.

L.S.A.-R.S. 17:441 et seq.

AND PARTICULARLY SECTION 442 THEREOF

IS UNCONSTITUTIONAL

Complainant further alleges that he is informed,

believes and therefore states that the defendants

herein acted in purported reliance upon the

provisions of the Teachers Tenure Act of Louisiana

known as L.S.A.-R.S. 17:441 et seq. and particularly

Section 442 thereof in discharging and dismissing

2la

your complainant without a hearing and without just

cause; Section 442 of said State law reads as follows:

“Each teacher shall serve a probationary

term of three years to be reckoned from the

date of his first appointment in the parish or

city in which the teacher is serving his proba-

tion. During the probationary term the city

school board, as the case may be, may dismiss

or discharge any probationary teacher upon

the written recommendation of the parish or

city superintendent of schools, as the case

may be, accompanied by valid reasons

therefor.

“Any teacher found unsatisfactory by the

parish or city school board, as the case may be,

at the expiration of the said probationary

term, shall be notified in writing by the board

that he has been discharged or dismissed; in

the absence of such notification, such

probationary teacher shall automatically

become a regular and permanent teacher in

the employ of the school board of the parish or

city, as the case may be, in which he has

successfully served his three year

probationary term; all teachers in the employ

of any parish orcity school board as of July 31,

1946, who hold proper certificates and who

have served satisfactorily as teachers in that

parish or city for more than three consecutive

years, are declared to be regular and perma-

nent teachers in the employ of the school

board of that parish or city.”

22a

As interpreted and as applied said state law does not

require an evidentiary hearing or an opportunity fora

hearing on the part of a teacher dismissed, removed or

demoted where tenure in the position involved is not

secured such as was the case of your complainant

herein in respect to his position as assistant coach of

Carencro High School; said state law, however, to the

extent that it may be interpreted to sanction the dis-

charge and dismissal of your complainant as herein

alleged is unconstitutional] null and void for two sub-

stantial reasons, viz., (a) it denies to complainant and

those similarly situated property without due process

of law and (b) it is both unconstitutionally vague and

overbroad forasmuch as the ‘valid reasons” authoriz-

ing a discharge without a hearing are not defined nor

are there any standards established by which the

meaning of such a term may be understood by

reasonable persons.

Complainant states that he is entitled to injunctive

relief against defendants herein prohibiting them

from depriving and continuing to deprive him of his

constitutional right not to be discharged or terminated

as assistant coach of Carencro High School without

valid reasons and of his constitutional right not to be

discharged and terminated as assistant coach and

deprived and denied of his good repute without valid

reasons and without constitutional due process. Com-

plainant further states that he is entitled to be

reinstated as assistant coach at Carencro High School

aforesaid retroactive to the date of his wrongful dis-

charge and removal together with all of the

emoluments of said position including the right to

compensation at the rate of ONE HUNDRED THIRTY-

THREE AND 33/100 ($133.33) DOLLARS per month.

- A or

sa tage i. las tn

23a

WHEREFORE complainant respectfully prays that

upon the filing of this complaint, as may appear fit-

ting and proper to the Court:

(1) That a statutory three-judge district court

be convened pursuant to Sections 2281 and

2284 of Title 28, U.S.C.A.;

(2) enter a final judgment, order and decree

that will declare LSA-R.S. 17:441 et seq..,

and particularly Section 442, un-

constitutional, null and void as a matter of

law and as applied;

(3) enter a permanent injunction that will en-

join and restrain defendants, their agents,

servants, representatives and employees

and their successors in office and all per-

sons acting for or with them forever from

enforcing against complainant said state

statute declared unconstitutional and

further enjoining, restraining and

prohibiting the defendants herein from

continuing and/or maintaining the

removal and dismissal of your complai-

nant as assistant coach of Carencro High

School without a meaningful hearing as

contemplated by the due process clause of

the Fourteenth Amendment to the United

States Constitution;

(4) enter a*final order, decree or judgment

commanding and directing defendants

herein to reinstate your complainant as

24a

assistant coach of Carencro High School,

Louisiana, retroactive to the date of his

wrongful dismissal or removal on July 1,

1973, together with all of the emoluments,

rights and privileges, including compen-

sation due from July 1, 1973, at the rate of

ONE HUNDRED THIRTY-THREE AND

33/ 100 ($133.33) DOLLARS per month, and

to continue him in said capacity and in

said employment thereafter subject to

removal but only for valid cause and after

a meaningful hearing as contemplated by

the due process clause of the Fourteenth

Amendment to the United States Constitu-

tion.

COMPLAINANT FURTHER PRAYS for such ad-

ditional orders or decrees as shall be authorized and

proper in the premises.

J. MINOS SIMON

Attorney for Plaintiff

1408 Pinhook Road

Post Office Box 52116, OCS

Lafayette, Louisiana 70501

/s/ J. MINOS SIMON

J. MINOS SIMON

Pe er ee ee

25a

United States District Court

Western District of Louisiana

Lafayette Division

ALLEN G. CONQUE

versus No. 74,166-L

HAROLD GAUTHE, HERMAN C. CLAUSE,

STANLEY P. BABIN, J. MAXIE BROUSSARD,

GEORGE F. DUPUIS, SR., DANIEL AUCOIN, DR. R.

A. BARANCO, J. STEWART BONNET, JESSIE

BOUDREAUX, JR., JEROME J. BOURQUE, ALTON

CHASSION, DUDLEY LASTRAPES, JR , CHARLES

S. PATTERSON, EARL VALLOT and

ALLEN G. DUGAS

MOTION FOR SUMMARY JUDGMENT

ALLEN G. CONQUE, appearing through counsel,

respectfully moves for summary judgment in his

favor as to the relief prayed for in numbered

Paragraphs 3 and 4 of his prayer, forasmuch as there

exists no substantial dispute of fact materially related

to the controversy presented by this lawsuit as to such

relief and that as a matter of law, plaintiff is entitled to

judgment as prayed for therein.

J. MINOS SIMON

Attorney for Plaintiff

1408 Pinhook Road

Post Office Box 52116 OCS

Lafayette, Louisiana 70501

/s/ J. MINOS SIMON

J. MINOS SIMON

26a

AFFIDAVIT

On this 11th day of June, 1974, personally came and

appeared before me, the undersigned authority, duly

authorized and qualified in and for the Parish of

Lafayette, State of Louisiana,

HERMAN C. CLAUSE, J. MAXIE

BROUSSARD, DANIEL AUCOIN, DR. R. A.

BARANCO, J. STEWART BONNET, JESSIE

BOUDREAUX, JR., ALTON CHAISSON,

DUDLEY LASTRAPES, JR..

residents of the Parish of Lafayette, who, after being

by me first duly sworn, did depose and say:

That each of them is a member of the Lafayette

Parish School Board and that they make this affidavit

for use in that certain suit entitled ‘Allen G. Conque v.

Harold Gauthe, et al,” No. 74-166-L on the docket of the

United States District Court, in opposition to plain-

tiffs motion for summary judgment filed therein and

in support of a motion for summary judgment filed by

defendants.

That each of them was a member of the Lafayette

Parish School Board on July 18, 1973 when the

Superintendent of Schools, Mr. Harold H. Gauthe,

recommended that Mr. Allen G. Conque be relieved of

his coaching duties at Carencro High School although

being retained at Carencro High School as a

classroom teacher. Their vote to sustain the

Superintendent's recommendation to relieve Mr. Con-

que of his coaching duties was based upon

ce eee ee

27a

Superintendent Gauthe’s recommendation as con-

tained in his letter of June 22, 1973, directed to Mr. Con-

que, copies thereof having been given to each affiant

herein, and on affiants’ conclusion that it was in the

best interest of the Lafayette Parish school system and

the athletic program at Carencro High School that Mr.

Conque be retained at such school as a classroom

teacher without any coaching duties or respon-

sibilities.

As Mr. Conque was not being dismissed or demoted

as a teacher in the Lafayette Parish school system but

merely having his duties reassigned, his reassign-

ment was included on alist of personnel changes at the

July 19, 1973, metting. (See Exhibit E, Page 3)

When the agenda item of personnel changes came

up, Mr. Conque and a group of his friends and sup-

porters were present at the Board meeting and Mr.

Conque and several of his supporters were recognized

and heard by the Board prior to its vote to approve “the

recommended personnel changes” which motion

carried by a vote of twelve (12) to one (1) with one (1)

member absent. (See Exhibit F, Page 4)

It was only after consideration of a Superintendent's

recommendation as set forth above and a hearing from

Mr. Conque and others that affiants concluded that it

was in the best interest of the Lafayette Parish schoo]

system to reassign Mr. Conque’s duties at the Caren-

cro High School.

/s/ HERMAN C. CLAUSE

Herman C. Clause, Board Member

28a

/s/ J. MAXIE BROUSSARD

J. Maxie Broussard, Board

Member

/s/ DANIEL AUCOIN

Daniel Aucoin, Board Member

/s/ DR. R. A. BARANCO

Dr. R. A. Baranco, Board Member

/s/ J. STEWART BONNET

J. Stewart Bonnet, Board Member

/s/ JESSE BOUDREAUX, JR.

Jesse Boudreaux, Jr., Board

Member

/s/ ALTON CHASSION

Alton Chassion, Board Member

/s/ DUDLEY LASTRAPES, JR.

Dudley Lastrapes, Jr., Board

Member

Sworn to and subscribed before me this 11th day of

June, 1974.

/s/ EARL A. BULLER

Notary Public

ON ae ca lt le Boe A acl

29a

STATE OF LOUISIANA

PARISH OF LAFAYETTE

ALLEN G. CONQUE, being first duly sworn, did

depose and say that for more than three years

preceding the filing of the captioned lawsuit he has

been a teacher of General Science in the public school

system of Louisiana in Lafayette Parish, Louisiana.

employed by the Lafayette Parish School Board and

thus pursuant to the Teacher Tenure Act of Louisiana

he enjoyed tenure in such a position. 7

Affiant further states that as a concomitant part of

his duties as a teacher he was employed by the

Lafayette Parish School Board during the 1972-73

school session as assistant coach at the Carencro

High School of Lafayette, Louisiana, a school form-

ing part of the public school system of Lafayette

Parish, Louisiana. For his services as assistant coach

at the Carencro High School aforesaid, he was entitled

to and did receive compensation at the rate of ONE

HUNDRED THIRTY-THREE AND 33/100 ($133.33)

DOLLARS monthly in addition to the compensation

which he received as a teacher of General Science.

Affiant further states that Herman C. Clause.

Stanley P. Babin, J. Maxie Broussard, George F.

Dupuis, Dr., Daniel Aucoin, R. A. Baranco, J. Stewart

Bonnet, Jessie Boudreaux, Jr., Jerome J. Bourque,

Alton Chassion, Dudley Lastrapes, Jr., Charles S.

Patterson and Ear! Vallot were at all times material to

this lawsuit and continue to be members of the

Lafayette Parish School Board and as such state of-

ficials have the authority to hire and fire teachers in

30a

connection with the educational system of the State of

Louisiana in Lafayette Parish, Louisiana, and Harold

H. Gauthe at all times material to this lawsuit was the

superintendent and/or acting superintendent of the

Lafayette Parish School Board, being essentially the

executive officer of the Lafayette Parish School Board

charged with the responsibility of superintending the

operations of all public schools in Lafayette Parish,

including the teachers in such school system. AllenA.

Dugas at all times material hereto was the principal of

Carencro High School of Lafayette F...ish, Louisiana.

Affiant states that defendants herein, while acting in

concert and under color of state law and arbitrarily ex-

ercising the power possessed by each by virtue of said

state laws removed affiant from the position of assis-

tant coach effective July 1, 1973. Said removal was

based upon scandalous and defamatory false

allegations damaging of your affiant’s reputationasa

person and as a member of the teaching profession,

involving questions of moral turpitude, insubordina-

tion, unprofessionalism, and professional in-

competency. The basis for the discharge in question

was the false and scandalous allegations and ac-

cusations articulated by Allen A. Dugas and com-

municated to Harold Gauthe by said Dugas in a letter

dated June 1, 1973, a copy of which is annexed to and

made a part of the original complaint hereof. Affiant

states that defendants herein willfully accepted the

scandalous ex parte statements of said Dugas and

others unknown to your affiant without regard to the

truthfulness thereof and without making reasonable

inquiry as to the verity of the scandalous statement

made against affiant. Affiant further states that said

Sila

state officials refused to conduct a hearing or even to

extend to affiant an opportunity for a hearing, though

affiant requested the same, for the purpose of deter-

mining the truthfulness or not of the scandalous

allegation and accusations asserted against your af-

fiant, notwithstanding that one of the members of the

school board, Mr. Preston J. Babineaux, made a formal]

motion requesting that said scandalous accusation be

the subject of formal inquiry and full hearing by the

Lafayette Parish School Board.

Affiant further states that the scandalous

allegations and accusations mentioned herein above

are not true. As a result of said discharge, your affiant

was removed from the position of assistant coach,

which formed part of his status as a teacher, and also

was deprived of the sum of ONE HUNDRED THIRTY-

THREE AND 33/100 ($133.33) DOLLARS per month

since July 1, 1973, and has continuously been deprived

of said income as a result of the wrongful conduct of

the defendants in connection with the captioned

matter.

/s/ ALLEN G. CONQUE

ALLEN G. CONQUE

SWORN TO AND SUBSCRIBED before me, Notary

Public, on this 30th day of April, 1974, at Lafayette,

Louisiana.

/s/ LOUIS M. CORNE

NOTARY PUBLIC

32a

COUNTER AFFIDAVIT

STATE OF LOUISIANA

PARISH OF LAFAYETTE

ALLEN G. CONQUE, first being duly sworn did

depose and say that he is the plaintiff in that certain

suit entitled ““Allen G. Conque vs. Harold Gauthe, et

al” bearing Docket Number 74-166-L on the docket of

the United States District Court. Affiant further states

that on one occasion he has met with the then acting

superintendent of the Lafayette Parish School Board

Harold Gauthe, Principal of Carencro High School

Dugas and some School Board members but at no time

has he been given an opportunity to present witnesses

and be heard in defense of allegations of incompeten-

cy. insubordination and incompatibility with the

coaching staff as alleged by Principal Dugas and

Superintendent Gauthe. Affiant states that on July 18,

1973, he was present at a school board meeting and re-

quested to be heard on his removal from duties as

coach but the School Board, despite a motion by one of

its members refused affiant any hearing and in fact the

only discussion affiant was allowed was that of

whether or not he would be given the requested hear-

ing. Affiant states that at no time did he present

witnesses to the School Board nor was he allowed any

opportunity to attempt to refute the charges against

him. Affiant further states that at no time has he ever

been given an opportunity to challenge the charges

against him nor given a meaningful hearing wherein

he was able to present witnesses and cross examine

accuser on the charges against him. Affiant states that

he has met on one occasion with Superintendent

al AO BIRT et IRR wt tite ey a Cae.

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33a

Gauthe and Principal Dugas along with others who

have criticized him and made scandalous charges

against him, but at no time has he ever been given the

opportunity to attempt to disprove these charges ina

meaningful hearing.

Affiant states that at no meeting held between him

and Superintendent Gauthe and Principal Dugas were

the charges set forth in Principal Dugas's letter to

Superintendent Gauthe of June 1, 1973, ever discussed.

/s/ ALLEN G. CONQUE

ALLEN G. CONQUE

SWORN TO AND SUBSCRIBED before me on this

12th day of July, 1974.

/s/ JOHN R. MOUTON

NOTARY PUBLIC

Exhibit D

June 22, 1973

Mr. G. Allen Conque

Rt. 2, Box 229E

Lafayette, Louisiana

Dear Mr. Conque:

During the 1972-73 school session, you were assigned

to Carencro High School as a teacher of general

34a

science (a tenured position) and an assistant coach (a

non-tenured position).

For several years, there have been numerous con-

troversies concerning the manner in which you func-

tioned as a member of the total coaching staff. The

situation has become so aggravated that several

hearings on the problem have been held. Attempts to

work the probelm out have failed.

This is to inform you that due to your apparent incom-

patibility to function as a member of a total coaching

staff and your sometime insubordinate attitude and

upon the recommendation of the principal of Carencro

High School and my review of the testimony brought

out at the several hearings. you are hereby removed as

an assistant coach and will remain assigned as a

classroom teacher at Carencro High School for the

1973-74 school session. This change in your status is

effective July 1. 1973.

Sincerely yours,

LAFAYETTE PARISH SCHOOL BOARD

Harold H. Gauthe, Acting Superintendent

HHG:mbg

cc: Mr. Allen Dugas. Principal

Lafayette Parish School Board Members