# Petition — Conque v. Gauthe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 892

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0717%3A1. Public record. Not legal advice.