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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 825

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1867%3A1. Public record. Not legal advice.