Petition — Tempe Elementary School District No. 3 v. Bernasconi

sana’ D a

1 L E D

MAY 201977

wen « ‘8. CLERK

Temes Exementany Scnoot Drunter No, 3, Kenwern J.

Fin, R. Crate Rowan, Wutsam G. Payne, Grone

M. Savonez and James R. Punars, Members, Tempe

Elementary School District No, 3 Board of Trustees,

in their official capacities, Eawesr F. wirs, in his

capacity as Personnel Director, O. S. Fees, in his capac-

ity as Superintendent of Schools, Anonew R. Avia,

in his former capacity of Principal of Veda B. Frank

School,

Petitioners,

v.

Soconno Heawanpez Berwascont,

Joun E. Luwom

8400 Valley Bank Center

201 North Central Avenue

Phoenix, Arizona 85073

Attorney for Petitioners

PAGE

FE ES a 2

EEE RS ee 1. 2

Constitutional Provisions Involved 2.0.0.0... 2

ETT TE 2

I . 3

The Reasons for Granting the W'i.t............................. 7

ES ee 7

ee 10

ENS a eee oe ee 13

Appendix A—

Opinion of Court of Appeals amie — la

Appendix B—

Order of Court of Appealass 12a

Appendix C—

Judgment of District Court 13a

Memorandum of District Court l4a

Taste cr Avrnonrries Crrep

Cases:

Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed.

II 8 fF, 8 s

Mt. Healthy City Board of Education v. Doyle,

U.S. ——, 50 L.Bd.2d 471, 97 S.Ct. 568 (1977) ....... g, On,

Perry v. Sindermann, 408 U.S. 593, 38 L. Fd. 2d 570, 92

Pickering v. Board of Education, 391 U.S. 563, 20 L. Nd.

| T'S. §, A

Constitutional Provisions:

First Amendment to the Constitution of the United

Statutes:

28 U.S.C. Section 125461)

ee

Ix THE

Supreme Court of the United States

Ocrossn Team, 1977

No.

Temes Evementany School, Drunter No, 3, Kennern J.

Futian, R. Crate Rover, Wasim G. Payne, Gronos

M. Seon and James R. Pumssrs, Members, Tempe

Elementary School District No, 3 Board of Trustees,

in their official capacities, Euxver F. Bine, in his

capacity as Personnel Director, O. 8. Fees, in his capac-

ity as Superintendent of Schools, Annnew R. Avita,

in his former capacity of Principal of Veda B. Frank

School,

Petitioners,*

v.

Socorro Hernanvez Bernasconi,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the opinion and judgment of the United States Court of

Appeals for the Ninth Circuit entered in the above entitled

and numbered case on February 22, 1977.

* Hereinafter “petitioner” refers to the school district and its

administrative board and administrative employees in their official

capacities.

Opinion Below

The judgment and opinion of the United States Court of

Appeals is printed in Appendix A and reported in 548 F.2d

857. The order denying the Motion for Rehearing was en.

tered April 8, 1977 and is printed in Appendix B. It is

unreported, The opinion and judgment of the United

States District Court, District of Arizona, was entered

March 25, 1975 and is printed in Appendix C. It is un-

reported.

Jurisdiction

The judgement and opinion of the United States Court of

Appeals for the Ninth Circuit was entered February 22,

1977. A Motion for Rehearing was timely filed by the peti-

tioner March 7, 1977 and denied April 8, 1977, A petition

for Stay of Mandate until May 8, 1977 pending a Petition

for Certiorari was granted. This Petition for Certiorari

was filed within the time required by Rule 22(3). This

Court's jurisdiction is invoked pursuant to 28 U.S.C.

§ 1254(1),

Constitutional Provision Involved

First Amendment to the Constitution of the United

States.

Questions Presented

Question I

Where a public school employee is qualified for either of

two educational employment positions within a school dis-

trict and where her transfer from one position to the other

is partially motivated by her exercise of protected speech,

employee been denied a rnment benefit suffici-

— to require ber — to her former

position when she enjoys the same objective employment

benefits (i.c., the same pay, salary increases, level of re-

sponsibility, working conditions, and status in the educa-

tional community) in her present position as she enjoyed

in the former position?

Question II

Is it error for the United States Court of Appeals to re-

mand to the United States District Court for further find-

ings on whether a public school employee would have been

transferred to her new position even in the absence of pro-

tected conduct where the trial record is uncontroverted that

her initial position became non-existent due to loss of fed-

eral funds?

Statement of the Case

On March 21, 1973, respondent, Socorro Bernasconi, filed

suit against the petitioner, Tempe Elementary School Dis-

trict, in the United States District Court, District of Ari-

zona, alleging that she was illegally transferred from the

position of counselor at the Veda B. Frank School, Guada-

lupe, Arizona, to the position of teacher at the Rural School,

Tempe, Arizona, because she had engaged in constitution-

ally protected free speech. The jurisdiction of the United

States District Court was invoked because the case involved

constitutional questions regarding individual rights under

the First and Fourteenth Amendments to the Constitution

of the United States. On March 25, 1975, the District Court

entered judgment finding that the transfer was at least

partially motivated by constitutionally impermissible rea-

sons, but denied relief on the ground that since the transfer

had not resulted in any loss of responsibility, pay, salary

4

increases, working conditions, or status within the eyes of

the educational community, the respondent had not been

denied a valuable (or cognizable) governmental benefit

(Appendix C). The Ninth Cireuit reversed on February 22,

1977, holding as a matter of law that since the respondent

had suffered a transfer from one position to another due

to her exercise of the freedom of speech, she was lawfully

entitled to some remedy (Appendix A).

The respondent was first employed by the petitioner for

the school year 1970-1971 and was assigned to the position

of counselor at the Veda B. Frank School (TR pp. 105, 165,

308). The following school year, respondent was assigned

to the position of second-grade elementary school teacher

at the Rural School. located three and one-half miles from

the Frank School (TR p. 183, Il. 13-20). For each year of

her employment with the petitioner, the respondent has

expressly agreed to teach and work in such assignment as

the petitioner may from time to time assign her (TR p. 188,

Il. 10-15). During the course of her employment, respondent

has received all anticipated salary increases in accordance

with the petitioner’s salary schedules (TR p. 184, U. 1-7).

She has not been discharged by the District and continues

to work at the present time as a classroom teacher within

the District.

During 1970-71, respondent was the only counselor of

five counselors employed by the petitioner who was paid

with Title I federal public education funds (TR p. 165, Il.

2-13; p. 222, Il. 1-15). In January or February of 1971, the

petitioner was informed that it may not be able to utilize

Title I funds for a position of counselor in the District (TR

pp. 310-11). On March 24, 1971, respondent received her

teacher’s contract for the 1971-72 school year, accompanied

by a letter from the petitioner’s personnel director indicat-

ing that the petitioner was having problems assuring the

5

existence of Title I funds for her counseling position for

the following year, that there was no assurance that her

position for the following year would be that / counselor,

and that her position for the next year might be that of

classroom teacher (TR pp. 197-98). Thereafter, respon-

dent’s coniract of March 24, 1971 was signed and returned

by her (TR p. 200). On May 14, 1971, the petitioner was

informed that it would not be able to use Title I funds to

finance any position of counselor (TR pp. 311-12). Conse-

quently, due to the lack of federal funding, there was no

position of counselor at the Frank School for the school

year 1971-72 (TR p. 312, U. 4-17). To maintain the coun-

selor position at the Frank School would have required the

abolishment of some other position or reduction of some

program then financed with local or state funds (TR p. 312,

Il. 18-25). In subsequent years the counseling position at

The District Court found that petitioner Andrew R.

Avila, the principal of the Frank School, was primarily re-

1 1970-71, the petitioner was also facing an ex-

rer

funds available to the petitioner, and a reduction

staff

|

sponsible for the respondent’s transfer (Appendix C at 27a-

28a). Over a period of months, Avila had been disappointed,

frustrated and annoyed with the respondent’s handling and

creation of several problems regarding the school, its per-

sonnel, and the community in which the Frank School is

located. Following an incident during the last week of

April, 1971, when the respondent refused to comply with

his instructions, Avila called the petitioner’s personnel di-

rector, informing him that he wished to have the respon-

dent transferred (TR pp. 89-91). Mr. Avila’s reasons for

requesting her transfer related to her insubordination

(TR p. 90), gossip regarding other teachers (TR pp. 71-73),

staff morale (TR p. 89), and differences in their philos-

ophies (TR pp. 74-75). However, even assuming that Mr.

Avila’s request for her transfer was retaliatory, his deci-

Zon to recommend her transfer was an ineffectual one.

Prior to his decision in late April, 1971, the petitioner had

already informed the respondent in February and on March

24 that there was a substantial chance that she would be

transferred because of the possible unavailability of Title I

funds for her present tion

307-08). counseling posi (TR pp. 197-98;

Teachers and counselors of the petitioner are

paid in

accordance with the same salary pay schedule (TR p. 41, Il.

12-14), they have the same hours of employment (TR p.

184, U. 8-11), the same working conditions, and have avail-

able to them the same general facilities (TR pp. 184-85).

The petitioner makes no distinction with respect to the

rank, grade or status of counselors and teachers (TR pp.

55-56 ; 215-16). Employees in both positions have been pro-

moted to administrative jobs (TR pp. 40-41). Indeed, the

unrebutted evidence indicates that the only difference be-

tween the two positions is the different function they per-

form in the educational system.

The Reasons For Granting the Writ

Question |

The issue involved in this case potentially affects the

millions of U. S. citizens employed by state and federal

governments. It is an important question within the con-

siderations of Rule 19(1)(b) of the Revised Rules of the

Supreme Court, and should therefore be decided by this

Court.

In Perry v. Sindermann, 408 U.S. 593, 597 (1972), this

Court stated:

„[Elven though a person has no ‘right’ to a valuable

government benefit and even though the government

may deny him the benefit for any number of reasons,

there are some reasons upon which the government

may not rely. It may not deny a benefit to a person

on a basis that infringes his constitutionally protected

interest—especially, his interest in freedom of speech.”

(Emphasis added.) :

The above language has been quoted in scores of opinions

and is the genesis of numerous cases in the federal courts.

These cases and the reams of legal commentary on Perry

v. Sindermann, subsequent related cases, and other related

issues indicate that the law is far from settled on the

rights of government employers and government employees

following the denial of a valuable governmental benefit and

an allegation that the denial was based on constitutionally

i ible reasons. Particularly, the circumstances of

this case manifest the need for the adoption of an objective

standard for determining whether an employee has been

denied a governmental benefit that ie, in fact, valuable.

In Perry v. Sindermann, this Court suggested the param-

eters of valuable governmental benefits which were to be

protected from government infringement:

“We have applied this general principle to denials of

tax ~~ ge unemployment benefits, and welfare

payments. . . But, most often, we have applied the

principle to denials of public employment.” 408 U.S.

at 597 (citations omitted; emphasis added).

The “general principle” involved (protecting against the

denial of valuable governmental benefits because of some

constitutionally impermissible reason) has been invoked

to protect benefits affecting a person’s livelihood, financial

security, and standard of living. But in no case has it been

applied merely because the individual subjectively wanted

or desired a particular form of benefit.

It is clear that termination of employment is a brutal

means of restricting teachers and other governmental em-

ployees from exercising their constitutional rights. Con-

sequently, it is well-settled that if the emplovee’s consti-

tutionally protected speech or activity is the motivating

factor of the employee's dismissal, that he is entitled to

reinstatement to his position. See, e. ., Keyishian v. Board

of Regents, 385 U.S. 589, 605-606 (1967); Pickering v

Board of Education, 391 U.S. 563, 568 (1968) ; Mt. Healthy

City Board of Education v. Doyle, —— US. ——, 50

1. Ed ad 471, 481-484, 97 S.Ct. 568, 575-576 (1977). But is

the mere transfer of an employee to another equivalent

position an infraction of the constitutional rights of that

employee? Has the employee lost a valuable governmental

benefit where the transfer does not affect the employee's

— of responsibility, pay, salary increases, working con-

tions, and status within the eyes of the professional

community; i. e., employment benefits that are objectively

ascertainable?

In many incidents, the transfer of an employee may be

the best solution to relieving tension in a highly volatile

situation, while at the same time preserving the employee’s

valuable governmental benefit of public employment. In

the public school setting, for example, che transfer of an

employee may be the best means of balancing that em-

ployee’s professional future with administrative-personnel

relations, co-worker harmony, and the best interest of the

students. The Ninth Circuit decision apparently precludes

even an administratively sound transfer, one wherein all

applicable parties benefit, if the employee subjectively

wishes to remain at the original position and can prove

that the transfer was even partially motivated by some

constitutionally protected activity. Such precedent may

produce the bizarre result foreseeable in factual situations

similar to those in the instant case; i.e., the Ninth Cireuit

decision may be interpreted as requiring reassignment to

a non-existing position, resulting in the special creation of

that position to satisfy the employee’s subjective expecta-

tions. Finally, even in cases involving the denial of public

employment for impermissible reasons, it appears that

reinstatement of the employee to a position of objective

equivalency satisfies the vindication of the constitutional

rights involved.’

Although addressing a different issue, this Court, in Mt.

Healthy City Board of Education v. Dowle, —— U.S. ——, 97

g. Ct. 568, 575, 50 L. Ed 2d 471, 483 (1977), stated that the

constitutional principle at stake is sufficiently vindicated if such

an employee is placed in no worse a position than if he had not

in the conduct... ,” indicating that some objective stan-

dard is appropriate in determining whether the denial of a valuable

mental benefit for some constitutionally impermissible reason

occurred. The respondent is in “no worse a position” at the

Rural School than she was in at the Frank School prior to her

10

While this Court has entered numerous opinions regard-

ing the rights of teachers and other governmental employ-

ees who have been terminated from their employment due

to their exercise of constitutionally protected rights, it has

never been presented with the issue whether a transfer of

an employee from one position to another constitutes a

denial of rights protected by the First Amendment, This

case is, in fact, the first to determine or attempt to answer

this issue in the federal courts,

The issue presented is an important one. The determina-

tion of this issue will affect the day-to-day administration

of school districts and their relations with their employees.

The existing decision may preclude and will inhibit the

transfer of teachers within school districts. By implication,

state and local governments and their agencies, and the

federal government and its agencies, will also be inhibited

in the transfer of their employees from one position to an

objectively equal position as a means of resolving employee

conflicts and other administrative problems which inei-

dentally take on aspects and overtones of the exercise of

free speech or other constitutionally protected activities,

The Ninth Cireuit decision, if allowed to stand, may seri-

ously impair the management and efficiency of educational

institutions specifically, and governmental agencies gen-

erally,

Question II

Even assuming that the respondent's constitutionally

protected speech or activity was a “substantial factor” or

a “motivating factor” in the principal’s decision to recom-

mend transfer, the fact remains that the position of coun-

transfer, Consequently, even if the motivation behind her transfer

was partially retaliatory, the “constitutional principle at stake is

sufficiently vindicated.” *

11

selor at the Frank School was closed due to the lack of

federal funds to finance the position, and therefore the

respondent would have been transferred regardless of any

protected speech incident. Consequently, the decision of

the Court of Appeals should be reversed in light of the

rule recently announced by this Court in Mt. Healthy City

Board of Education v. Doyle, —— U.S. ——, 50 L.Ed.2d

471, 484, 97 S.Ct. 568, 576; namely, that a personnel deci-

sion of a school board will be upheld if the school board

shows “by a preponderance of the evidence, that it would

have reached the same decision [regarding the teacher's

employment] even in the absence of the protected conduct.”

In Mt. Healthy, this Court treated the issue avoided by the

Ninth Circuit, stating:

“We are thus brought to the issue whether . the fact

that the protected conduct played a ‘substantial part’

in the actual decision not to renew would necessarily

amount to a constitutional violation justifying reme-

dial action, We think that it would not.

A rule of causation which focuses solely on whether

protected conduct played a part, ‘substantial’ or other-

wise, in a decision not to rehire, could place an em-

ployee in a better position as a result of the exercise

of constitutionally protected conduct than he would

have oceupied had he done nothing. The difficulty with

the ruling enunciated by the District Court is that it

would require reinstatement in cases where a dramatic

and perhaps abrasive incident is inevitably on the

minds of those responsible for the decision to rehire,

and does indeed play a part in that decision—even if

the same decision would have been reached had the

incident not occurred. The constitutional principle at

stake is sufficiently vindicated if such an employee is

placed in no worse a position than if he had not en-

12

gaged in the conduct. A borderline or marginal candi-

date should not have the employment question resolved

against him because of constitutionally protected con-

duct. But that same candidate ought not to be able, by

engaging in such conduct, to prevent his employer

from assessing his performance record and reaching a

decision not to rehire on the basis of that record, sim-

ply because the protected conduct makes the employer

more certain of the correctness of its decision.

[The proper test to apply in the present context is

one which likewise protects against the invasion of

constitutional rights without commanding undesirable

consequences not necessary to the assurance of those

richts.“ U.S. ——., 50 L.EBd.2d at 482-84, 97 8. Ot.

at 575-76 (emphasis added).

The evidence is unrebutted and the record is clear on

its face that the position of counselor at the Frank School

was going to be and was, in fact, closed because of the

non-availability of federal funds (TR pp. 312-13; 216-17).

Hence, the respondent would have been transferred to

another position regardless of the First Amendment ques-

tion, and therefore her transfer falls squarely in the hold-

ing of Mt. Healthy v. Doyle.

While the Ninth Circuit infers that the District Court

found that retaliation was the sole reason for the transfer

(Appendix A at 7a-8a), neither the trial record nor the Dis-

trict Court opinion substantiate that conclusion. The record

is clear that there simply was no counselor position for

anyone at the Frank School the year following the respon-

dent's transfer, Further, the District Court's findings

focused only on the subjective reasons that one individual

(Mr. Avila, the school principal) had in recommending the

13

fer of the respondent (Appendix C at 27a-28a), and did

— which it was proved (without rebut-

tal) that the transfer would have occurred even if there had

been no recommendation by Mr. Avila. Additionally, while

the Ninth Circuit states that the District Court considered

the issue of the loss of funds (Appendix A at 8a), the

District Court seems, in fact, to have rejected even the

consideration of the issue. Before this Court decided Mt.

Healthy, the District Court concluded that once it had de-

termined that the recommendation by Avila was retalia-

tory, the District Court was thereafter legally precluded

from considering whether the transfer would have oceurred

even if no such recommendation had been made (Appendix

Cat Sila).

Because there was a complete and unrebutted showing

that the respondent's transfer would have occurred any-

way, the Court of Appeals was the appropriate court to

enter a judgment consistent with this Court's Mt. Healthy

decision. Therefore, the Cireuit Court’s remand to the

District Court for further findings of fact on the issue was

error.

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Jon K. Lon

Srernen W. Myrns

Attorneys for Petitioners

May 19, 1977

APPENDIX

APPENDIX A

Opinion of Court of Appeals

UNITED STATES COURT OF APPEALS

For tue Niyta Crecuir

No. 75-2156

Sonnoco Heranaypvez Bernasconi,

Appellant,

V.

Temes Evementany Scuoot Disraicr No. 3; Kenyern J.

Fut, R. Crate Rover, WAA G. Payye, Gronce

M. Sanchez and James R. Pussies, Members, Tempe

* Elementary School District No. 3 Board of Trustees,

' in their official capacities; Exxest F. Bivins, in his

. capacity as Personnel Director; O.S. Fees, in his ca-

pacity as Superintendent of Schools; ADA W R. Aula,

in his former capacity of Principal of Veda B. Frank

School,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Before:

Er and Wauiace, Circuit Judges,

and Sotouox,“ District Judge.

* Honorable Gus J. Solomon, Senior District Judge for the Dis-

trict of Oregon, sitting by designation.

a a as nes

— — —ç

Appendix A

Exy, Circuit Judge:

Mrs. Bernasconi, a public school teacher and counselor,

appeals from the trial court’s denial of relief on her claim

that she was illegally transferred from her position at a

certain school because of her national origin and because

she had engaged in constitutionally protected free speech.

The Distriet Court, sitting without a jury, dismissed the

claims of national origin discrimination. It concluded, how-

ever, that the School District had indeed transferred the

appellant in retaliation for her exercise of constitutionally

protected free speech; nevertheless, the court denied relief

on the ground that the transfer did not deprive Bernasconi

of a “valuable governmental benefit.”

—

The action was to 422 USC. § 1983

and 42 USC. § 200005(f) Sapp. TI, 1972) — invoke

USC $1 Fr

II. 1972).

* Essentially, the facts

of the ! are taken from the unpublished

3a

Appendix A

to Guadalupe, where she was employed by the Tempe Ele-

mentary School District as a counselor at the Frank School

during the school year 1970-71.

During the year, the appellant became concerned that

children were being placed in classes for the mentally re-

tarded because they were tested in English rather than in

their native tongue. She attempted to correct this problem

internally through contacts with the principal, one Avila,

and the special services division of the School District. In

the spring of 1971, Bernasconi, frustrated by the lack of

action on the part of the school, advised certain parents of

affected children to consult the local legal aid society. Re-

lations between Bernasconi and the school authorities had

by this time become significantly strained, with the result

that she was denied access to the files of children placed in

special education classes. The situation worsened in April,

when Avila requested Bernasconi to obtain parental con-

sent forms for the retesting of the children. Believing that

post hoc authorization would require deception of local

residents, Bernasconi refused. Avila then formally re-

quested her transfer to another facility, although he had

been considering the transfer for some time previously.

The plaintiff was transferred to the Rural Sebool, a

school attended primarily by well-to-do Anglo students.

She sought reconsideration and the Distriet's Board of

Trustees conducted a hearing on August 24, 1971. The

August 27, 1971, and, in part, the letter explained :

The Board considered these factors in making its de-

cision: the counseling position at Frank School is abol-

lished for 1971-1972 because of the lack of federal

4a

Appendia A

funds for this position; there are no teaching vacancies

at Frank School and there are vacancies in other

schools in the district; at least in making transfers

from Frank School a primary consideration has been

that teachers in their first year of service have been

considered first for a transfer ; guidelines for transfers

of teachers which were developed by our own teachers’

professional organization were adhered to in making all

transfers; these guidelines provided that the principal

make the final decision of who should be transferred

because only he knew what transfer would least affect

his school’s educational program; there has been a

change in the enrollment patterns at Frank and other

schools which makes transfer of teachers necessary.

[Emphasis added. }

No counselor was employed at the Frank School during the

1971-1972 school year, but in subsequent years a part-time

counselor was there employed.

_ As a result of a suit filed by the “Guadalupe Organisa-

tion,” with which the plaintiff's husband worked, the State

of Arizona subsequently agreed, in 1972, that a proper

evaluation of a child’s intelligence and verbal skills re-

quired testing in the child’s primary language. In conjune-

tion with this litigation, all except one of the Guadalupe

children named as plaintiffs in the suit were removed from

the special education curriculum at the Frank School and

returned to regular classes.

“VaLuas_e Governmental Bewerrr”

The District Court, as previously noted, denied relief on

the ground that the plaintiff suffered no loss of a “valuable

governmental benefit,” since her transfer involved no loss

5a

Appendix A

of pay or status. The court’s holding on this point appears

to raise a question of first impression in our Circuit.

The term “valuable governmental benefit” originated in

the opinion of the Supreme Court in Perry v. Sindermann,

408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1971),

which dealt with the non-renewal of an untenured profes-

sor’s contract of employment. The Court held that:

„„ even though a person has no ‘right’ to a valuable

governmental benefit and even though the government

may deny him the benefit for any number of reasons,

there are some reasons upon which the government

may not rely. It may not deny a benefit to a person

on a basis that infringes his constitutionally protected

interests—especially, his interest in freedom of speech.

For if the government could deny a benefit to a person

because of his constitutionally protected speech or

associations, his exercise of those freedoms would in

effect be penalized and inhibited. This would allow the

government to ‘produce a result which [it] could not

command directly.’ Speiser v. Randall, 357 U.S. 513,

526, 78 S.Ct. 1332, 2 L.Ed.2d 1460. Such interference

with constitutional rights is impermissible... .” 4d.

at 597, 92 S.Ct. at 2697.

We note initially that the above quotation must be read

in light of the context from which it derived, i. e., the de-

fendants’ claim that Perry’s interest in reemployment was

only a benefit to be accorded by the college, and not a prop-

erty right. In our case, the School District seizes upon the

language employed by the Supreme Court to broaden First

Amendment protection, and urges us to construe it as a

limitation upon First Amendment rights. We do not reach

this somewhat unusual interpretation of Perry, however,

6a

Appendix 4

because even if there is a point at which government action

is so de minimus that it will not trigger a remedy for

abridgement of First Amendment rights, our is not such a

case. The transfer of Bernasconi from a position uniquely

suited to her talents and desires is precisely the kind of

action that is proscribed by Perry.

Other courts which have considered this question agree

with the view that we take. In Adcock v. Board of Educa-

tion, 10 Cal.3d 60, 109 Cal.Rptr. 676, 513 P.2d 900 (1973),

the Supreme Court of California applied First Amendment

protection to all administrative sanctions, noting that

“[Ijesser penalties than dismissal can effectively silence

teachers and compel them to forego exercise of the rights

guaranteed them by our Constitution.” 109 Cal.Rptr. at

680, 513 P.2d at 904. The Fourth Cireuit has held that a

classroom teacher’s public statements regarding his homo-

sexual status did not justify his transfer from teaching to

administrative work, even though without loss of pay.’ In

the light of the findings of the District Court in the present

case, Bernasconi cannot lawfully be denied a remedy on

this ground.

ReraviaTory TRANSFER

In anticipation of a possible reversal on the “benefit”

question, the School District urges that we set aside the

District Court’s finding that the transfer was based par-

tially upon retaliation for the exercise of First Amendment

rights. This, we decline to do. The court’s finding in this

respect is manifestly protected by the “clearly erroneous”

standard of Rule 52(a), Fed.R.Civ.P.

* Acanfora was denied relief on the ground that he

eciously omitted his affiliation with te fling

— 1 „

7a

Appendia A

The evidence need not have demonstrated that Berna-

sconi’s complaints were the sole cause of her transfer. It

was necessary only that she prove that her complaints

„partially“ motivated her transfer. Grey v. Union County

Intermediate Education District, 520 F.2d 803 (9th Cir.

1975). On the other hand, in order to protect the interests

of both Bernasconi and the School Board, the plaintiff's

evidence must have demonstrated that the transfer’s pur-

pose was “to quell legitimate dissent” or “to punish ex-

pressive behavior.” Mabey v. Reagan, 537 F.2d 1036, 1045

(9th Cir. 1976).

The District Court found that Avila, the principal of

Frank School, was primarily responsible for the transfer

even though other persons reviewed his decision. The per-

sonnel director for the District, Bivins, testified that the

principal’s decision on transfers is given “very serious con-

sideration.” In addition, a letter Mrs. Bernasconi received

from the School Board informing her of the transfer and

the results of the hearing stated that “principal make[s]

the final decision of who should be transferred.” Since no

contrary evidence was introduced, the court’s finding that

Avila was responsible for the transfer cannot appropriately

be held to have been clearly erroneous.

The record establishes that Avila initially sought to have

Bernasconi transferred because of her complaints about

the special education program. Bivins testified that al-

though Avila did not communicate in writing his intention

to transfer Bernasconi and the reasons therefor until May

3, 1971, Avila had discussed the transfer with him, Bivins,

earlier in the spring of 1971. Most significantly, Avila

testified at length of his disapproval of Bernasconi’s com-

plaints about the special education program, that he com-

municated his disapproval to her several times, and that

—————————————————— ccc

Sa

Appendia A

he requested her transfer because of her activities in con-

nection with the special education program, Although the

School District argues that Avila's reason for requesting

the transfer wos Bernasconi’s insubordination, Avila’s own

contrary testimony rebuts this argument. The District

Court's finding on this issue was supported by substantial

evidence and is therefore not clearly erroneous.“

Picxertne v. Boarp or Epvcation

Finally, the School District argues that the balancing

test suggested in Pickering v. Board of Edueation, 391

U.S, 563, 88 S.Ct, 1731, 20 L. Ed ad 811 (1968), requires

that we affirm the judgment. We note first that the trial

judge conscientiously applied the Pickering test, as the

following paragraph from the District Court's carefully

considered remarks indicates:

* We also reject two other attacks on this finding. The School

Distriet argues that funding problems were responsible for

the decision not to retain Bernasconi as a counselor at the Frank

School, and therefore, Avila's motivation was irrelevant. The Dis-

triet Court considered this issue with care and concluded that

whereas funding problems may have necessitated some transfers

in the district, Mrs. Bernasconi was singled out for transfer based

on impermissible considerations. We that Bernasconi met

the burden of showing that her speech was a “motivating

factor” in her transfer, C. Mabey v. Reagan, 587 F.2d 1036, 1044.

45 (9th Cir, 1976).

Next, the School District makes the t that Bernasconi’s

pleadings charge only that she was erred for her

with the special education lawsuit, and that Avila had no knowl.

edge of the lawsuit at the time he recommended her transfer. But

the complaint, together with the pretrial statement, indicate that

the transfor. It addition e matnly reese alleged fer

the transfer. In addition, Bernasconi alleged that Avila's

edge of her activities, which py FL, Pe

contributed to his decision to request the transfer. Therefore,

School Board's argument in this respect is not well founded.

9a

Appendia A

In concluding that the plaintiff's communications

constituted protected speech, the court has attempted

to balance the interests of the teacher, as a citizen, in

commenting upon matters of public concern, and the

interest of the state, as an employer, in promoting the

efficiency of the public services it performs through its

employees. Ring v. Schlesinger, 164 U.S. App. D.C. 19,

502 F.2d 479 (1974). The court has been attentive to

the four factors noted in Pickering of (1) co-worker

harmony, (2) interference with the regular operations

of the schools, (3) sensitivity of the relationship be-

tween the speaker and the criticized superior, and

(4) close contact between the speaker and the subject

of the criticiam. Where, as in the instant case, the pub-

lie statements made by the plaintiff were directed

primarily at a general practice rather than at named

individuals, the court finds the balance to tip in favor

of the teacher’s right to speak. An important factor

influencing the court’s finding is the nature of the

provlem to which the plaintiff's communications ad-

dressed themselves: that is, a governmental practice

which, in the context of the public schools, tended dis-

proportiouately adversely to affect a particular ethnic

group. The court recognizes that the plaintiff's com-

munications may have had the effect both of leading

to a change in what had been standard operating pro-

cedure in the schools and of ruffling the feathers of

some of the plaintiff's co-workers, That, even so, the

plaintiff's right to speak ought to be protected in

consonance with the first amendment’s primary con-

cerns.

Since the trial judge so carefully weighed the variety

of complex factual circumstances involved, we accord to

10a

Appendix A

his decision a great deal of deference. To us, however,

Pickering and its progeny“ appear to indicate that this

court itself must strike the balance. Accordingly, we have

ourselves undertaken a most careful review of the record.

We agree with the conclusion of the district judge that the

School District’s interest in being free from general criti-

cism cannot outweigh the right of a sincere, educational

counselor to speak out against a policy she believes to be

both harmful and unlawful. The disposition is not con-

trolled by Gray v. Union County Intermediate Education

District, supra, because there is absolutely no suggestion

in our record that Mrs, Bernasconi engaged either in ha-

rassment, or in the deliberately insubordinate conduct of

the plaintiff in Gray. As the Supreme Court noted in

Pickering, each case presents significant and important

varieties of factual circumstances that should properly af-

fect the decision. While it may thus he impossible to fa-

shion a general rule, we have no doubt whatsoever that the

factual circumstances of the present case require that

Bernasconi be granted relief.

Concivsion

Our determination that we cannot affirm the District

Court's judgment on any of the grounds suggested by the

School District requires us to consider the appropriate

scope of our remanding Order. After the District Court

issued its decision, the Supreme Court of the United States

decided Mt. Healthy City School Dist. v. Doyle, —~— US.

"See Mabey v 537 F.2d 1096 (9th Cir. 1976 .

Paice Cooke Tt ee n

(9th Cir. 1975); Duke v. North Teras State U 469 F.2d

mae Cir. 1973) ; Chitwood v. Peaster, 468 F.2d (4th Cir.

lla

Appendix A

——, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The Court there

decided that in situations such as that presented here, a

achool district must be allowed to show “by a preponder-

ance of the evidence, that it would have reached the same

decision regarding [the teacher’s] employment even in the

absence of the protected conduct.” Id. at —— 97 S.Ct. at

576. In the present case, the School District presented

evidence that the transfer of Bernasconi was based solely

on federal funding problems.“ The District Court appeared

to reject that contention, but we think that adequately pre-

cise findings on the point were not made, If, on remand,

the District Court concludes that the School District did

not meet its burden of showing “that it would have reached

the same decision as to [Mrs. Bernasconi’s transfer] even

in the absence of the protected conduct,” then the District

Court should forthwith proceed to fashion an appropriate

remedy fitting the somewhat unusual circumstances and

according to Bernasconi a fair measure of the relief to

which she is entitled.

Reversen anp Remanven.

* See footnote 4, supra.

12a

APPENDIX B

Order of Court of Appeals

UNITED STATES COURT OF APPEALS

For tae Ninta Cracurr

No. 75-2156

Socorro Hernanvez Bernascont,

Plaintiff-Appellant,

V.

Tempe Evementany School, Disraicr No. 3, et al.,

Defendants- Appellees.

Before:

Evy and Waxtace, Circuit Judges,

and Soromon,* District Judge.

The Petition for Rehearing is denied.

* Honorable Gus J.

lst of Goume, - Senior District Judge for the Dis

13a

APPENDIX C

Judgment of District Court

UNITED STATES DISTRICT COURT

Diernict or Amon

No. Crv. 73-182 Phx

Socorro Herananpez Bernasconi,

Plaintiff,

v.

Tur Evementary School, Disraicr No. 3, et al.,

Defendants.

This action came on for trial before the court, Honorable

William J. Lindberg, district judge, presiding, and the

issues having been duly tried and a decision having been

rendered,

Ir Is Onpernep anv Apsuporp:

That the plaintiff take nothing, that the action be dis-

missed on the merits.

Daren this 25th day of March, 1975.

Wu J. Linpsero

Senior United States District Judge

l4a

Appendia C

Memorandum of District Court

UNITED STATES DISTRICT COURT

Disrnict or Anizowa

No. Cv. 73-182 PHX

Socorro Hernanvez Bernascont,

Plaintiff,

v.

Temre Evementany ScOO, Disracr No, 3, et al.,

Defendants.

On March 21, 1973, Socorro Hernandez Bernasconi

(plaintiff) commenced an action against Tempe Elementary

School District Number Three and against the individual

defendants named in the caption. The action was

pursuant to the civil rights acts of 1871˙ and 1964; the

plaintiff invoked the special jurisdiction of the federal

courts to hear such claims.’ An amended complaint was

filed on May 25, 1973. The defendants’ motions to strike

and to dismiss were denied by an order of the court en-

tered on August 27, 1973. The defendants’ motion for sum-

mary judgment was granted in part by the court on Jan-

uary 6, 1975; a partial judgment reflecting that ruling was

filed on February 10, 1975. On October 7, 1974, a pretrial

*42 U.8.C. §1983 (1970).

*42 U.S.C. §2000e-5(f) (Supp. II, 1972).

*28 U.S.C. 41343 (3), (4) (1970); 42 U.8.C. §20000-5(f) (3

(Gy. ote ), (4) (1970); § (f) (3)

15a

Appendiz C

order had been made part of the record by the court, and

the issues remaining to be determined were tried there-

under, beginning on February 18, 1975. Although all rul-

ings prior to trial had been made by Honorable Carl A.

Muecke, one of the judges of the above entitled court, the

trial was held before the undersigned judge, sitting in the

District of Arizona upon special assignment. This post

trial memorandum of decision constitutes the court's find-

ings of fact and conclusions of law.“

The trial treated two issues: (1) Whether the defen-

dants’ action in transferring the plaintiff from a position

as counselor in the Frank school to a position as teacher

at the Rural school violated the plaintiff's right to freedom

of speech. (2) Whether the defendants’ action in transfer-

ring the plaintiff was based upon considerations of her

national origin and was therefore violative of her right to

the equal protection of the law and was, in addition, an

unlawful employment practice as defined in the civil rights

act of 1964." The court has determined both of these issues

adversely to the plaintiff, and the court has concluded that

a judgment for the defendant ought to be entered.

The evidence supports the following summary of perti-

nent facts.

The Veda B. Frank school is located in the community

of Guadalupe, Arizona, and lies within the jurisdiction of

Tempe Elementary School District Number Three.“ The

‘Pep. R. Civ. P. 52(a).

§ 42 U.S.C. §2000e-2(a)(1) (Supp. II. 1972).

16a

Appendix C

population of Guadalupe is approximately fifty-five per-

cent Mexican-American and approximately forty-five per-

cent Yaqui. The plaintiff is a Mexican-American female

who was employed as a counselor at Frank school for the

school year 1970-1971, and was employed by the district

for some time prior to that. The plaintiff was employed as

a second grade teacher at the Rural school for the school

year 1971-1972. The plaintiff was born and raised in the

community of Guadalupe, speaks Spanish, and has a work-

ing knowledge of Yaqui. The University of Dayton awarded

the plaintiff a bachelor’s degree in education on July 30,

1967; the degree is supported by a satisfactory academic

record. After she completed a program designed particu-

larly to train individuals in counselling children of

Mexican-American ancestry, the plaintiff was awarded a

master’s degree from Texas Tech University. Among

plaintiff's professional skills is that of bilingual psychom-

etry, or intelligence testing and interpretation. The plain-

tiff is the first individual in recent times to have come from

Guadalupe and to have made significant academic achieve-

ments. It has been a career goal of the plaintiff to return

to her community and help others achieve as has she.

trict Number Three, No. CTV 71-435 PHX. (D.Ariz., Jan-

uary 25, 1972, filed August 10, 1971). The stipulation was

entered into by the plaintiffs and the so-called state defen-

dants, who may be characterized as associated with the

Arizona state board of education. The problem for which

— 1 Le TR A

.

17a

Appendix C

redress war sought in Guadalupe Organization was this:

Mexican-American and Yaqui Indian elementary school

children, whose primary languages were Spanish or Yaqui,

were being given intelligence tests by the Tempe public

schools. The verbal portions of these tests were adminis-

tered solely in English. As a consequence, a number of

Guadalupe children, who had not scored well on the tests,

were classified as mentally retarded and placed in special

education classes. Stated briefly, the stipulation and order

entered in Guadalupe Organization sought to cure this

problem by requiring the state board of education to pro-

mulgate regulations governing the classification of students

as mentally handicapped. The most important notion run-

ning throughout the stipulated regulations was that an

elementary school student’s intelligence and verbal skills,

to be validly evaluated, ought to be evaluated in his pri-

mary language. the language of the home.

On May 17, 1972, an additional stipulation and order

was entered in Guadalupe Organization. The stipulation

was entered into by the plaintiffs and the defendants as-

sociated with Tempe Elementary School District Number

Three. In that stipulation, the defendants agreed to follow

the recently stipulated-to state regulations in placing chil-

dren in special education classes. (Compare. P. v. Riles,

343 F.Supp. 1306 (N. D. Cal. 1972), 4½/ . 502 F.2d 963 (9th

Cir. 1974)). The plaintiffs hushand works with the

Guadalupe Organization; the plaintiff in the instant case

was not a party to the litigation broncht bv the Guadalupe

Organization against the state and district. In conjunction

with this litigation, all except one of the Guadalupe chil-

dren named as plaintiffs in Guadalupe Organization were

removed from the special education curriculum at the

Frank school and returned to regular classes.

18a

Appendix C

On March 15, 1971, the plaintiff signed a contract with

the district referable to the 1971-1972 school year. In that

contract the following language appears [Ex. KK]:

[The plaintiff] . . during the period of this contract

hereby agrees to teach such grade, grades, or subjects

in the Tempe Elementary Schools as the superinten-

dent of said schools may assign for the 1971-1972

school year .... Be it further agreed that reasonable

rules and regulations prescribed or approved by the

board of trustees shall he a part of this contract.

In the Policies and Regulations of the Board of Trustees of

Tempe School District Number Three. Article IX. Section

Five, the following language appears [Pretrial order

(PTO) at 3]:

Teachers are subject to transfer from position to posi-

tion at the discretion of the Superintendent of Schools.

When transfers are beine considered. the personnel

director shall confer with the emplovees concerned

and shall review all reasons for the transfer and make

recommendations to the Superintendent.

Mr. Ernest F. Bivens. who was at nertinent times the

personnel director for the district wrote to the plaintiff on

March 24, 1971. in conjunction with her contract for the

1971-1972 school year. In the letter Bivens states Ex. HI:

At this time we do not know what federal funding will

give us in the area of counseling and o we can make

no assurances that your essienment for 1971-1972 will

he that of counselor. You Should realize this when

and if vou accent the contract and realize that vour

assignment mav be that of a classroom teacher at any

schoo] in the district.

19a

Appendix C

Mr. O. S. Fees, who was at pertinent times the superinten-

dent of schools for the district, held a meeting for first-

year teachers on January 24, 1971. At that meeting, which

the plaintiff attended, Fees stated that, because of enroll-

ment and funding problems that had arisen in the district,

first-year teachers would have to be placed in an unassigned

pool and given assignments as openings occurred. [PTO

at 3].

On May 3, 1971, Mr. Andrew R. Avila, who was then

principal of the Frank school, wrote a letter to Mr. Bivens.

The text of the letter is as follows [Ex. 3]:

I hereby request the transfer of Mrs. Socorro Berna-

sconi from Veda B. Frank school. The reasons for

making this request are of a personal nature. These

involve differences in philosophy as well as staff and

community relations. I believe that Mrs. Bernasconi

is a very capable person who has a lot to offer chil-

dren, both as a teacher and as a counselor. I have

discussed this matter with Mrs. Bernasconi.

A handwritten note accompanied the letter. The text of

the note is [Ex. 3]:

Ernie: As you suggested - - - I did not give Mrs.

Bernascori a copy of this letter. /s/ Andy.

On June 8, 1971, Mr. Bivens dispatched a memorandum to

a number of unnamed “teachers who do not have an as-

signment for next year.” Among those receiving the

memorandum was the plaintiff. Vacancies at schools in the

district were listed and those to whom the memorandum

was directed were asked to contact principals at the

20a

Appendia C

schools preferred. (Ex. JJ.“ On August 11, 1971, Mr.

Bivens wrote directly to the plaintiff indicating vacancies

which were available in the district for her. [Ex. K].

Protesting her transfer, the plaintiff wrote a letter to the

district which was received on August 13, 1971. [PTO at 3].

A response was sent by Mr. Bivens on August 17, 1971.

[Ex. BB]. In the response, changes in federal funding

requirements were offered as the reason for the transfer

of the plaintiff.

After the plaintiff, seeking reconsideration of her trans-

fer, contacted the district board of trustees, a hearing was

held before the board on August 24, 1971. The board re-

viewed the transfer and affirmed the action. A letter of

explanation was directed to the plaintiff on August 27,

1971. In that letter the following appears [Ex. M]):

The Board considered these factors in making its de-

cision: the conseling position at Frank School is

abolished for 1971-1972 because of the lack of federal

funds for this position; there are no teaching vacancies

at Frank School and there are vacancies in other

schools in the district; at least in making transfers

from Frank School a primary consideration has been

that teachers in their first year of service have been

considered first for a transfer; guidelines for trans-

fers of teachers which were developed by our own

teachers’ professional organization were adhered to in

making all transfers; these guidelines provided that

the principal make the final decision of who should be

transferred because only he knew what transfer would

The phrase Maus To” and the list of six names noted at the

top of Exhibit J were added subsequent to mailing by personnel

staff The phrase and list were not on the memorandum

received by the plaintiff.

i

21a

Appendix C

least affect his school’s educational program; there has

been a change in the enrollment patterns at Frank

and other school which makes transfer of teachers

necessary. {Emphasis added).

No counselor was employed at the Frank school during the

1971-1972 school year. Of three counsellors who have

served at Frank school subsequently and who have come

to the attention of the court, two were of Mexican-American

extraction. [Exs. W. XI. Mr. Andrew R. Avila is likewise

Mexican-American.

Mr. Bivens’ testimony was taken at trial on February 19,

1975. Mr. Bivens indicated that normally a principal’s

recommendation for transfer is given very strong consid-

eration by his administrative superiors, because the prin-

cipal is responsible for staff relations, morale, and every-

thing that occurs in a given school. Mr. Bivens stated that

he knew as early as spring 1971 that Mr. Avila was recom-

mending the transfer of the plaintiff from Frank school.

According to Mr. Bivens, the letter from Mr. Avila to Mr.

Bivens [Ex. 3] was a formalization of the principal’s previ-

ously expressed intentions. Mr. Bivens noted that, insofar

as pay and hours are concerned, there is no difference in

the district between counsellors and teachers. But Mr.

Bivens observed that a counsellor has to be specially cer-

tified by the state. Mr. Bivens also noted that no other

counsellors in the district had been transferred when the

plaintiff was transferred. Mr. Bivens stated that the plain-

tiff’s transfer resulted from problems with federal funding

and that her national origin did not influence the decision

in any way.

Mr. Fees’ testimony was taken at trial on both February

18 and February 19, 1975. Mr. Fees’ view of the facts sup-

22a

Appendiz C

posrted that of Mr. Bivens in many respects; in particular,

‘they agreed as to the existence of state requirements for

counsellor certification, the lack of wage and hour differ-

ences between counsellors and teachers, the federal fund-

ing problem as the basis for the plaintiff’s transfer, and the

fact that the plaintiff’s national origin did not influence the

transfer decision. Mr. Fees also testified that, as early as

March 1971, he was aware that problems existed in the spe-

cial education program at Frank school and that the plain-

tiff had indicated children were in the program who did not

belong there. Mr. Fees stated that on or before April 2,

1971, he was aware that the plaintiff had talked to the

parents of affected children concerning the special educa-

tion program. Mr. Fees stated that the plaintiff had acted

properly in questioning the classification of certain children

enrolled in the Frank school special education program and

in bringing the matter to the attention of the district au-

thorities. Mr. Fees indicated that bringing the special edu-

cation problem to the attention of parents of affected chil-

dren was also, in his opinion, proper. Mr. Fees felt that

the plaintiff had acted improperly when she in August 1971,

wrote a letter to an editor concerning the placement of

children in special education classes. Mr. Fees stated that

during the 1970-1971 school year, to his knowledge, the

plaintiff had been performing her duties satisfactorily and

= had never been called in for a personal conference with

ees,

Mr. Andrew Avila testified on February 18, 1975. Mr.

Avila stated that during the school year 1970-1971 the

plaintiff began by satisfactorily performing her duties.

According to Mr. Avila, the plaintiff informed him about

the problem of misplaced children in the Frank school

special education program. Mr. Avila recalled a meeting

23a

Appendiz (

between himself and the plaintiff on February 25, 1971,

during which he asked the plaintiff whether she had been

suggesting that the local legal aid society be consulted by

parents and misplaced children. Mr. Avila felt sure that

the plaintiff had begun to discuss the special education

problem with him no later than March 1971. On March 1,

1971, Mr. Avila wrote to the plaintiff and forcefully in-

structed her not to involve herself with the placement and

removal of children in special education classes. Mr. Avila

stated in the letter that he had been directed so to instruct

1 4 by Mr. Robert Curry, then associate superin-

Bf schools for the district. [Ex. 4]. Mr. Avila

stated that he did not agree with the plaintiff’s view of the

circumstances; rather, Mr. Avila thought then that children

who were placed in special education classes were in fact

mentally retarded and had not been subjected to invalid

testing procedures. Mr. Avila now agrees that the new state

regulations are useful in alleviating classification problems

caused formerly by testing children’s intelligence quotient

in other than their primary language.

Mr. Avila stated that he was at that time of the opinion

that the plaintiff facilitated the presentation to the local

legal aid society of the case of the misplaced students.

After he had expressly told the plaintiff not to do so, ac-

cording to Mr. Avila, such behavior on her part was in-

subordinate. Mr. Avila stated that he felt the plaintiff was

fomenting dissent; and Mr. Avila expressed the opinion

that teachers should not speak out in the community even

where what is bei», said is true. Mr. Avila added that he

wrote his letter of May 3, 1971, [Ex. 3] because the plain-

tiff was involving herself in community affairs, talking too

much and, according to Mr. Avila, thereby indulging in un-

professional behavior. Mr. Avila indicated that he had re-

24a

Appendiz C

ceived complaints from certain named teachers about the

plaintiff and her spreading gossip. Mr. Avila felt that

statements made by the plaintiff about other teachers at

Frank school damaged morale and would affect the quality

of education provided there.

According to Mr. Avila, his decision to request the trans-

fer of the plaintiff became firm after the plaintiff declined

to follow his instruction to go out in the community and

gather signatures from parents permitting the reevalua-

tion of certain students affected by the special education

program. According to Mr. Avila, the gathering of such

signatures was required by law. Mr. Avila stated that the

plaintiff refused to gather the signatures because the ac-

tivity was against her principles. Mr. Avila indicated that

no consideration of the plaintiff’s national origin was in-

volved in his decision to recommend her transfer. Mr.

Avila is no longer principal of the Frank school.

The plaintiff testified on February 18, 1975. Much of her

testimony indicated her close involvement with the com-

munity of Guadalupe, her academic background, and her

special training in counselling. The plaintiff also discussed

the ethnic makeup of the community and her particular

language skills. The plaintiff then turned to her role in the

resolution of the special education problem at the Frank

school. According to the plaintiff, through her dealing with

the children in the special education program, she devel-

oped the opinion that some had been placed in the program

improperly and as a result of low scores achieved on the

familiar Wechsler intelligence test for children. The test

had been administered to Spanish and Yaqui speaking

children in English.

The plaintiff stated that, having become aware of this

problem during the 1970-1971 school year, she tried to cor-

25a

Appendix C

rect the matter internally. According to the plaintiff, she

spoke with Mr. Avila and with Kay Murphy, who was a

district employee assigned to the special services division.

The plaintiff evidently suggested that retests of certain

children be made and that certain parents be contacted.

According to the plaintiff, the parents of some of the chil-

dren who had been placed in special education classes were

unaware of the fact of such placement. According to the

plaintiff, corrective efforts on the part of the administra-

tion were not apparent. Therefore, on February 24, 1971,

the plaintiff informed Mr. Avila that if something were not

done, he was leaving himself “wide open for a law suit.”

On February 25, 1971, Mr. Avila confronted the plaintiff

and stated to her that he had received a telephone call from

Mr. Curry concerning the plaintiff's referring of special

education children to the local legal aid society. Thereupon

the plaintiff telephoned Mr. Curry and explained her con-

cern. Mr. Curry set up a meeting where the plaintiff was

permitted to discuss her views with members of the special

services division and with Mr. Avila and Mr. Curry.

After the meeting, the plaintiff testified, she was in-

structed not to look at files concerning children placed in

special education classes. According to the plaintiff, a

counsellor routinely has access to these files in order to

assess student progress and to propose solutions to given

problems. Moreover, the plaintiff received the March 1,

1971, letter containing information which Mr. Curry di-

rected Mr. Avila to pass along to the plaintiff. [Ex. 4].

Later the plaintiff learned that retesting of certain of the

children in the special education program would occur. In

the middle of March 1971, according to the plaintiff, she

advised certain parents of the affected children to consult

the local legal aid society. She offered this advice, accord-

26a

Appendix C

ing to her testimony, because even by this time nothing in

the way of corrective activity on the part of the district

administration had occurred. It was only at the end of

March or the beginning of April 1971 that actual retesting

of the affected children began.

The plaintiff has deseribed her refusal to gather signa-

tures authorizing retesting in the following manner: After

the retesting program had begun, Kay Murphy determined

that written parental consent to the retesting was required

for the file. Representatives of the administration were

unsuccessful in procuring the number of parental signa-

tures needed. Therefore the plaintiff, who enjoyed the

special confidence of members of the Guadalupe com-

munity, was asked to go out and talk the appropriate pa-

rents into signing consent forms. Because the procurement

of signatures authorizing retesting was being done post

hoc, the plaintiff refused, feeling that she would be par-

ticipating in the deception of local residents were she to

ask for the signatures. The plaintiff stated that, although

Mr. Avila indicated that her transfer was requested be-

cause she had refused to gather signatures, that in her

opinion the change in assignment had occurred to punish

her for speaking out and to deter any future activity on her

part in the community. The plaintiff stated that she passed

useful information along to her husband to facilitate the

Guadalupe Organization in its efforts to bring suit against

the district. The plaintiff has also stated that her transfer

resulted from considerations of her national origin. In

support of this view, the plaintiff noted that the individual

who followed her (after a year’s hiatus) as counselor at

Frank school was a non-Spanish speaking, allegedly less

qualified Caucasian, and the plaintiff noted that the district

had not paid her for a week’s work which she had per-

formed several years earlier.

27a

Appendia C

The plaintiff testified that her employment with the

district has not been terminated, nor has threat of termina-

tion been made against her. The plaintiff noted that she

has suffered no decrease in pay and has received the ap-

propriate salary increases as her vears of service with the

district have passed. The plaintiff indicated that she works

the same hours as she would have had she been the Frank

school counselor and that the working conditions are the

same, save that she is employed in the Rural school, some

three and one half miles from the Frank school. The stu-

dent body of the Rural school is approximately ninety

percent “Anglo” and, instead of being composed of the

desperately poor, is composed of the children of the well-

to-do. The plaintiff has admitted that her contract with

the district permitted them to assign her as need war-

ranted. The plaintiff has reapplied for the Frank school

position.

Other evidence and testimony was offered at trial bear-

ing on both the issue of freedom of speech and that of

discrimination based upon national origin. The summary

above touches on the evidence deemed most pertinent by

the court.

It is the opinion of the court that the evidence warrants

finding the following as fact: Although Mr. Bivens, Mr.

Fees and the district board of directors all reviewed the

propriety of transferring the plaintiff such deference was

given to the wishes of Mr. Avila that the transfer decision

was essentially his alone. Mr. Avila did not single out the

plaintiff for transfer because he was aware of federal

funding problems concerning the counselor position at the

Frank school. Mr. Avila did not single out the plaintiff for

transfer solely because she refused to gather parental

signatures. Therefore, that the plaintiffs refusal may

28a

Appendix C

have been warranted is peripheral to our discussion. Mr.

Avila did single out the plaintiff for transfer because he

was exasperated by her activities in the school, in the

community, and especially in suggesting legal action to

the parents of affected children, all of which activities

were concerned with the misclassification as mentally re-

tarded of Mexican-American and Yaqui children attend-

ing the Frank school. Mr. Avila’s decision was retaliatory.

Mr. Avila’s decision to request the plaintiff’s transfer

did not derive from considerations of her national origin,

because Mr. Avila himself is a Mexican-American. More

importantly, Mr. Avila’s decision to request the plaintiff's

transfer did not derive from considerations of her national

origin, because it clearly derived from the principal’s dis-

pleasure with the plaintiff’s divulging of the special educa-

tion problems to the community of Guadalupe. District ad-

ministration determinations not to place the plaintiff, upon

subsequent application, as a counsellor at the Frank school

did not derive from considerations of her national origin

because two of the three counsellors who followed the

plaintiff at Frank school were themselves of Mexican-

American extraction. District administration determina-

tions not to place the plaintiff, upon subsequent applica-

tion, as a counsellor at the Frank school derived both

from considerations of her qualifications vis-a-vis other

applicants and from those factors which had originally led

Mr. Avila to request her transfer.

The contract signed by the plaintiff (as well as state

law and the district rules and regulations) permit the

district administration in its informed discretion to trans-

fer an employee from school to school and from a job as

teacher to a job as counselor. The plaintiff has not suf-

fered a demotion. The plaintiff has not been subjected to

29a

Appendiz C

any loss of wages. The plaintiff has not been required to

work more hours to earn her wage as a classroom teacher

than as a counselor. The plaintiff has regularly received

salary increases when due. The plaintiff has not presently

lost her employment as a result of her communications to

Guadalupe residents. It appears that the plaintiff will not

be subjected to a loss of employment as a result of her

communications to Guadalupe residents. Therefore, the

plaintiff has not been denied a valuable governmental

benefit. J

The Supreme Court has recently had occasion to treat

first amendment claims like that of the plaintiff. Perry v.

Sindermann, 408 U.S. 593 (1972); Pickering v. Board of

Education of Township High School Dist. 205, 391 U.S.

563 (1968). Those cases support the proposition that the

first amendment prohibits the denial of a valuable govern-

mental benefit in retaliation for the exercise of the con-

atitutional right of free speech. .

The court is of the view that the plaintiff's communiea-

tions to her husband, to members of the Guadalupe com-

munity, and to a newspaper editor, constituted protected

speech. As the Court said in Pickering, 391 U.S. at 574:

Statements by public officials on matters of public con-

cern must be accorded First Amendment protection

despite the fact that the statements are directed at

their nominal superiors.

The court in Pickering also noted that teachers are, as a

class, the members of a community most likely to have

informed and definite opinions on matters of school opera-

tion, and that it is accordingly essential that teachers be

able to speak out freely on such questions without fear of

30a

Appendia C

retaliation. Pickering v. Board of Edvcation of Township

High School Dist. 205, 391 U.S. 563, 572 (1968).

In concluding that the plaintiff’s communications con-

stituted protected speech, the court has attempted to bal-

ance the interests of the teacher, as a citizen, in commenting

upon matters of public concern, and the interest of the

state, as an employer, in promoting the efficiency of the

public services it performs through its employees. Ring v.

Schlesinger, 502 F.2d 479 (D.C.Cir. 1974). The court has

been attentive to the four factors noted in Pickering of

(1) co-worker harmony, (2) interference with the regular

operations of the schools, (3) sensitivity of the relationship

between the speaker and the criticized superior, and (4)

close contact between the speaker and the subject of the

criticism. Where, as in the instant case, the public state-

ments made by the plaintiff were directed primarily at a

general practice rather than at named individuals, the

court finds the balance to tip in favor of the teacher’s right

to speak. An important factor influencing the court’s find-

ing is the nature of the problem to which the plaintiff’s

communications addressed themselves: that is, a govern-

mental practice which, in the context of the public schools,

tended disproportionately adversely to affect a particular

ethnic group. The court recognizes that the plaintiff's

communications may have had the effect both of leading

to a change in what had been standard operating procedure

in the schools and of ruffling the feathers of some of the

plaintiff's co-workers. That, even so, the plaintiff's right to

speak ought to be protected in consonant with the first

amendment’s primary concerns.

The court has been troubled by the fact that federal

funding problems may have required staffing readjustments

within the district. It is necessary that a district, through

3la

Appendiz C

its agents, have the power to adjust staff assignments

where matters of finance require adjustments. Today’s

ruling does not derogate from the district’s power to act

in proper circumstances. In the instant case, the court is

confronted with circumstances where the district, cognizant

that some employee might be, of necessity, subjected to

transfer, selected the transferee for impermissible reasons.

If the transfer were even in partial retaliation for the

plaintiff's exercise of first amendment rights, it is of no

avail to the district that financing problems required some

staff readjustment. Gieringer v. Center School District

No. 58, 477 F.2d 1164 (Sth Cir. 1973); Fluker v. Alabama

State Board of Education, 441 F. 2d 201, 210 (5th Cir. 1971)

(Thornberry, J.).

The court has thus concluded that the district has re-

taliated against the plaintiff for her exercise of the con-

stitutional right of free speech; however, the court has

found as a fact that there has been no demotion and no

denial of a valuable governmental benefit in conjunction

with the retaliation, and it is for that reason that the plain-

tiff is entitled to no relief on this claim. Research has led

the court to many cases where a demotion or transfer was

involved: Washington v. Board of Education, School Dis-

trict 89, Cook County, Illinois, 498 F.2d 11 (7th Cir. 1974),

principal demoted to classroom teacher and transferred ;

Acanafora v. Board of Education of Montgomery County,

491 F.2d 498 (4th Cir. 1974), homosexual teacher trans-

ferred to non-teaching position; United States v. Board of

Education of Lincoln County, Georgia, 469 F.2d 1315 (5th

Cir. 1972), black guidance counselor demoted to classroom

teacher at same rate of pay; Springston v. King, 340 F.

Supp. 314 (W.D.Va. 1972), guidance counselor demoted to

classroom teacher at same rate of pay. With the exception

32a

Appendix C

of the Lincoln County, Georgia, case, where the court as-

sumed that a reassignment from counselor to classroom

teacher constituted a demotion, the court’s research has

suggested that some serious damage to wage or status must

result from school district action before it can be said that

a valuable governmental benefit has been denied to an in-

dividual employee. The court finds no such damage in the

instant case; and the court expressly predicates its holding

on the assumption that the plaintiff's employ with the dis-

trict, insofar as it might have been threatened by her activi-

ties concerning the special education problem, is secure.

The court concludes that the plaintiff has failed to meet

its burden of proving that any district action taken with

respect to the plaintiff arose from considerations of her

national origin. For this reason the court will not further

discuss the plaintiff’s claim founded upon this point.

In an action brought under the civil rights acts, a court

may award damages for the emotional and mental distress

caused by an intentional tort. Donovan v. Reinbold, 433

F. 2d 738 (9th Cir. 1970). The court has explored the pos-

sibility of characterizing this action as one seeking such

an award, but finds that the evidence presented is insuffi-

cient to warrant taking such action.

The plaintiff has also requested from the court an award

of attorney’s fees and exemplary damages. Even in the

absence of actual damages, punitive damages may be

awarded for a civil rights act violation. Punitive damages

may be awarded where willful or malicious violations of

constitutional rights have been proved, or where a defen-

dant has acted wilfully and in gross disregard for the rights

of the complaining party, or where the defendant has acted

with knowledge that he was violating the plaintiffs rights

or with reckless disregard of whether he was violating such

— — -- — -

33a

Appendiz C

rights. Stolberg v. Members of the Board of Trustees for

the State Colleges of the State of Connecticut, 474 F.2d 485

(2nd Cir. 1973). The court finds that the action taken

against the plaintiff derived more from exasperation than

from malice, and that an award of exemplary damages

would, under the circumstances, be unwise.

The award of attorney’s fees is restricted to the excep-

tional case and turns on whether the bringing of the action

should have been unnecessary and was compelled by the

school board’s unreasonable, obdurate obstinacy, or where a

defense has been maintained in bad faith, vexatiously, wan-

tonly, or for oppressive reasons. Stolberg v. Members of

the Board of Trustees for the State Colleges of the State

of Connecticut, 474 F.2d 485 (2nd Cir. 1973). In light of

the court’s ruling, it cannot be said that the district here

was acting unreasonably or in bad faith in resisting the

plaintiff's suit. Thus an award of attorney’s fees ought not

be made.

The clerk of the court is directed to send an uncertified

copy of this memorandum to counsel for each of the parties,

and to the plaintiff, Mr. O. S. Fees, Mr. Ernest Bivens, and

Mr. Andrew Avila.

Daren this 25th day of March, 1975.

William J. Lindberg

Senior United States District Judge