Petition — Ball v. Board of Trustees of the Kerrville Independent School District

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

t Supreme Court, U. & ~

FILED

5 1979

in the MICHAEL RODAK, JR., CLERK

Supreme Court of the Anited States

OCTOBER TERM, 1978

No. #8-1215

GENE BALL,

Petitioner

versus

BOARD OF TRUSTEES OF THE KERRVILLE

INDEPENDENT SCHOOL DISTRICT, HENRY H.

WIED, MARGARET WATSON, DAN W. BACON, PAT

BRADEN, EARL A. COCHRANE, MAURICE HAUFLER

AND C. H. BORCHERS, MEMBERS OF THE BOARD OF

TRUSTEES, INDIVIDUALLY AND IN THEIR

OFFICIAL CAPACITIES,

Respondents

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

Joe Mike Egan, Jr.

254 First National Bank Building

Kerrville, Texas 78028

Attorney for Petitioner

A B Letter Service, ine., 327 Chestres St., New Orleans, Le. ($04) 581-5555

Te ec ceecoeees

Reasons for Granting the Writ.................

l. The finding of the U.S. Court of

Appeals that Gene Ball failed to raise a

substantial federal question conflicts

directly with this Court’s decision in Kelley

v. Johnson, 425 U.S. 238 (1976). The dis-

charge of petitioner for refusal to remove his

Van-Dyke beard and refusal to grant him re-

newal contracts for the same reason violated

his right to substantive “liberty” guaranteed

by the Due Process Clause of the Fourteenth

A A

2. The finding f the U.S. Court of Appeals

that Gene Ball failed to raise a substantial

federal question conflicts direct with recent

IN DE X (Continued)

PAGE

decisions of the Fifth Circuit, being Lansdale

v. Tyler Junior College, 470 F.2d 659 (Sth Cir.-

1972 en banc) cert. denied 411 U.S. 986; and

Hander v. San Jacinto Junior College, 519 F.2d

273 (5th Cir. 1975). Moreover, undue the Equal

Protection Clause of the Fourteenth it makes no

difference if the threatened interest be a privilege

rather than a right. Even a privilege cannot be

granted to some by State action, but withheld

from others where the basis of classification is

arbitrary. The discharge of petitioner for refusal

to shave his Van-Dyke beard and refusal to offer

him a renewal contract for the 1970-71 and sub-

sequent school years violated his right to equal

protection of the laws guaranteed by the Four-

pt Co cba cn badudewese nee 36

3. The finding of the U.S. Court of Appeals that

Gene Ball failed to raise a substantial federal

question conflicts directly with the decisions of

Court in Perry v. Sindermann, 408 U.S. 593

(1972); Board of Regents of State Colleges v.

Roth, 408 U.S. 564 (1972), and Paul V. Davis,

424 U.S. 693 (1976). The discharge of petitioner

without hearing and in his absence on September

3, 1969, and subsequent failure to grant him a

hearing prior te refusal of a renewal contract for

1970-71 ani subsequent school years violated his

right to procedural due process guaranteed by the

Fourteenth Amendment ..............0+55 40

IN DE X (Continued)

PAGE

4. That there is no barrier (as Judge Godbold

indicated there was in his specially concurring

opinion) to Mr. Ball having his day in Court on

his claim to reinstatement, and back pay....... 42

5. There there is no barrier (as Judge Godbold

indicated there was in his specially concurring

opinion) to Mr. Ball having his day in court on

his damage claims, both actual and exemplary . . 48

6. That even if (as was indicated by Judge

Godbold in his specially concurring opinion)

the condition of the U.S. District Court in

its order of June 5, 1970 and affirmed by the

Court of Appeals that Ball litigate in the state

proceeding in a good faith adversary manner

was not a barrier to litigation of his federal

claims in federal court, Ball, with no choice,

did comply fully with the stipulation in the

ek A a 51

7. That disposition of this case by, in effect,

summary judgment on the merits granted by

the U.S. Court of Appeals on its own motion

cannot be sanctioned on this record .......... 63

Ry etn a andl ae nay ee 70

RET Se nay sop ap eon arte eae 70

IN DE X (Continued)

PAGE

Appendix A. ......--ceecccescesccesssccee® A-1

Appendix B......----eeeeesreeeererecenees A-13

Appendix C.......-cceeccessscsrresesceees A-15

Appendix D. ......---eeeeereeseeeereeeeee® A-29

ee .

LIST OF AUTHORITIES

PAGE

CASES

American National Bank of St. Paul v. National

Indemnity Company of Omaha, 222 F2d 513

MEE os boseeenancaes 63

Ball v. Kerrville Independent School District,

504 S.W. 2d 791 (Tex. Civ. App. 1975,

5 Sg 5, 6, 24, 32, 55

Ball v. Kerrville Independent School District,

529 S. W. 2d 792 (Tex. Civ. App. 1975,

ER ok ahead i'n pase nies * 6, 32, 33, 55

Blair v. Board of Trustees, Trinity

Independent School District, 161 S. W. 2d

1030 (Tex. Civ. App. Galveston, 1942

Re ARP es 62

13, 31, 40, 43,

Board of Trustees of Arkansas A & M

College v. Davis, 396 F 2d 730 (8th Cir)

cert. denied 393 u.S.962....... 50

Board of Trustees of Crystal City Independent

School District v. Briggs, 486, S. W. 2d.

829 (Tex. Civ. App. - Beaumont, 1972,

SN ee eee 59

LIST OF AUTHORITIES (Continued)

Brookwalter v. Phelps, 325 F. 2 186 (8th Cir.

CN cf. aud cane wn eee tet reese o%

Brazoria Independent School District v. Weems,

(Tex. Civ. App.) 295 S. W. 268........+--

Breen v. Kahl, 296 F. Supp. 702 (W. P. Wisconsin -

1969) affm'd 419 F. 2d 1034 (7th Cir. -

1959) Cert. denied 308 U.S. 937.......---

Broadrick v. Oklahoma, 413 U.S. 601 (1975). .

Brooks v. School District, 267 F. 2d 733

(8th Cir.) cert. denied 361 U.S. eee

Brown v. Chastain, 416 F. 2d 1012 (1969)

Cafeteria and Restaurant Worker's Union,

Local 473 v. McElroy, 367 U.S. 886.......

City of Kenosha v. Bruno, 412 U.S. 507

Civil Service Comm’n v. Letter Carriers,

413 U.S. 548 (1973)... eee eee ee eens

Connally v. General Contractor Company,

PAGE

34, 41

31,49

coe

_ ——

ee ee ee

vii

LIST OF AUTHORITIES (Continued)

Dallas v. Moseley, 286 S. W. 497 (Tex. Civ. App. -

Dallas, 1926), affirmed 17 S. W. 2d 56

Damico v. California, 389 U.S. 416 (1967)... .

England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411 (1964) ...

Ferguson v. Thomas, 430 F. 2d. 852 (1970)...

Ferrell v. Dallas Independent School

District, 392 F. 2d 697 (Sth Cir. 1968)... ..

Fikes v. Sharp, 112 S. W. 2d 774 (Tex. Civ.

App. - Austin, 1938), no writ history ......

Fromen v. Goose Creek Independent School

District, 148 S. W. 2d 460 (Tex. Civ. App. -

Galveston, 1941, err. dis’m. .............

Gragg v. Hill, 58 S. W. 2d. 150 (Tex. Civ.

App. - Waco, 1933) err. ref..............

Greene v. Howard University, 412 F. 2d 1128

(D. C. Cir. 1969)

Griswold v. Connecticut, 381 U.S. 479

(1965) White, J. Concurring

PAGE

10, 61

55, 58, 65

14, 41

32, 61, 62

LIST OF AUTHORITIES (Continued)

PAGE

Hander v. San Jacinto Junior College, 519 F. 2d 273

(Sth Cir. 1975) . 0... eee ee ee eee rete eens 36

Hander v. San Jacinto Junior College,

opinion af’d on petit for reh. 522

F. 2d 204 (Sth Cir. - 1975)... 6... 0 eee cers 39

Harkness v. Hutcherson, 38 S. W. 1120

(Tex. Sup. Ct. 1897)... .. eee eee eres 10, 62

Harkness v. Sweeny Independent School

District, 427 F. 2d 319 (Sth Cir. 1970)..... 31,49

Hatton v. County Board of Education,

422 F.2d 457 (6th Cir.). . 1... . eee eee eres 50, 51

Hix v. Tuloso-Midway Independent School

District, 489 S. W. 706 (Tex. Civ. App. -

972, 344,45, WF. @.. cc cece cee gece 61“

Homer v. Richmond, 110 U. S. App. D.C. ie

226, 299, 292 F. 2d 719, 722.......--++- y 50

Johnson v. Branch, 364 F. 24 177 ve

(4th Cir. 1966) .. 22... cece eee rere eee / 4,4

Jones v. Hopper, 410 F. 24 1323 (10th

Cir. POOR 5 5 ea ete py sine 15

BBE. REINS RT: ee Ot oo yee

LIST OF AUTHORITIES (Continued)

PAGE

Karr v. Schmidt, 460 F. 2d 609 (5th Cir.

en banc, 1972) cert. denied 409 U.S. 989... 37, 38

Karr v. Schmidt, 401 U. S. 1201 (Feb

MOU hee ew ce ves back. ; a 37

Kelley v. Johnson, 425 U.S. 238 ti | Te 30, 32, 33, 34

39, 41, 44, 45, 46, 63, 65

Lansdale v. Tyler Junior College,

470 F. 2d 659 (5th Cir. en banc - 1972)

cert. denied 411 U.S.986............... 12, 14, 33

38, 39

Love v. Dallas, 40 S.W. 2d 20 (Tex

«es Seti 31

Lucas v. Chapman, 430 F. 2d 945

ID ee 13, 14, 41

Lucia v. Duggan, 303 F. Supp 112

ee 13, 33, 34

41, 49, 50

Marrs v. Mathews, 270 S. W. 586

(Tex. Civ. App. Texarkana, 1925)

Pores oir pre 60

McCollum v. Adams, (Tex. Civ

ERO WG. cde n ce ee 62

LIST OF AUTHORITIES (Continued)

PAGE

Moseley v. Dallas, 17 S. W. 2d 36

(Tex. Comm. Apps. - 1929) at40......... 60

Mt. Healthy School District v. Doyle, mers

SS eee , 42, 45,

429 U.S. 274 (1977) ac

Orr v. Trinter, 444 F. 2d 122 (6th Cir. 1971),

cert. denied 408 U.S. 943 ........---555: 50,5

Palko v. Connecticut, 303 U.S. 319 (1937). ... 35

Paul v. Davis, 424 U.S. 693 (1976) ........-- 40, 41, 42

Perry v. Sindermann, 408 U.S. 593 (1972).... Sun

Pickering v. Board of Education, ak

391 U.S. 563 (1968)... 2. cece eee eees ‘

Perry v. Sindermann, 408 U.S. 597.......+--. 43, 68

Poe v. Ullman, 367 U.S. 497 (1961) .......-- 33

Pred v. Board of Public Instruction, a

415 F. 2d 851 (5th Cir. 1969).........-..

Richards v. Thurston, 424 F. 2d 1281........ 37

PTET NH RE Re Oe PYRO

LIST OF AUTHORITIES (Continued)

PAGE

Smith v. Concordia Parish School Board,

We ©. EN Pe IPT. os dias cwines xan 50

Smith v. Board of Education of

Morilton School District, 365 F. 2d 770

og EAS oe ee 46, 47

Speiser v. Randall, 357 U.S.513............ 15, 44

Sterzing v. Fort Bend Independent

School District, 496 F. 2d 92 (Sth

PE RUC WEN Ts env ns vad bios sau 14, 31, 47, 48

Sweetbriar Institute v. Button,

2 ee 65

Underwood v. Sabinal Independent

School District, 257 W 267 (Tex. Civ.

App. San Antonio, 1925) ............... 62

United Farm Workers of Florida Housing

Project, Inc. v. City sf Del Ray Beach,

493 F. 2d 799 (Sth Cir. 1974)............ 49

Unified School District No. 480 v.

Epperson, 551 F. 2d 254 (10th

I Acct cutee she kvi cet 48

United States v. Cotton Plant School

District No. 1, 479 U.S. 671............. 46

xii

LIST OF AUTHORITIES (Continued)

Webb v. Lake Miles Community School

District, 344 F. Supp. (N.D. Iowa - 1972)...

Whitmarsh v. Buckley, 324 S. W. 2d 298

(Tex. Civ. App. Houston, 1959) ..........

Williams v. Albermarle City Board of

Education, 508 F. 2d 1242 (4th Cir.

BOP ccc ccecccccccccscccccccescoes

STATUTES:

Texas Education Code

| in

eI DEN a ccc cccsoccecdeececcune

OO") 2) Serr er

OID 5 ikucncccccsrsecsesscees

I BEI cic cccccoscccuscecaveces

Section 21.201 et seq .,.... cece eeeeeees

ET, Cece ccc cteccbebeceeees

PU IE occ cnc Cece sees ceeress nee

Texas Statutes

Article 6252 V.A.C.S. .... cece ee ee ees

PAGE

32,61

xiii

LIST OF AUTHORITIES (Continued)

PAGE

42 U.S.C.A. Section 1983................. 3, 4,5, 6,7

12, 23, 24, 28, 29, 31, 49, 52, 53, 54, 56, 87, 64

| 8

28 U.S.C.A. 1343(3) and (4)............ 8

28 U.S.C.A. 220] and 2202.............. 8

28 U.S.C.A. Section 2254............... 58

TREATISES:

Note. 81 Harv. L. R. 1452,.............. 13

81 Harv. L. R. 1439 at 1454 et ae 14, 39

Opin. Texas Attorney General 1967,

No. M-123

—— = |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1978

GENE BALL,

Petitioner

versus

BOARD OF TRUSTEES OF THE KERRVILLE

INDEPENDENT SCHOOL DISTRICT, HENRY H. WIED,

MARGARET WATSON, DAN W. BACON, PAT BRADEN,

EARL A. COCHRANE, MAURICE HAUFLER AND C. H.

BORCHERS, MEMBERS OF THE BOARD OF TRUSTEES,

INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES

. Respondents

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

The petitioner, Gene Ball, prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the Fifth Circuit rendered in this case.

OPINIONS BELOW

The unpublished opinion of the United States Court of

Appeals rendered on November 20, 1978, appears in Appen-

dix A to this petition at pages A-1 through A-12.

The judgment rendered by the United States Court of Ap-

peals on November 20, 1978 appears in Appendix A at page

A-11.

The Order of the United States Court of Appeals rendered

on December 20, 1978, denying petitioner’s motions for re-

hearing and rehearing en banc appears in Appendix A at page

A-10.

The Order of the United States District Court dated

November 19, 1976 denying [Petitioner’s] Petition For Re

instatement and For Leave to File a Third Amended Com-

plaint [from which this appeal was taken] appears in Ap-

pendix B at page A-13 and A-14 .

In Appendix C, to show the background of the case from

which the U.S. District Court’s Order of November 19, 1976

evolved, are reproduced in chronological order the earlier

orders of this Court and lower federal courts in this case as

follows:

1. The Order of the U. S. District Court denying

temporary injunction on March 23, 1979 ap-

pears in Appendix C at page A-15 .

2.The Order to show cause issued by the U. S.

District Court on May 13, 1970 appears in Ap-

pendix C at pages A-16 , A-17 and A- 18

3. The Order of Dismissal entered by the U. S. Dis-

trict Court on June 5, 1970 appears in Appendix

C at pages A- 19 and A- 20.

4. The opinion of the United States Court of Ap-

peals rendered on December 17, 1970, reported

in 434 F 2d 1040 and withdrawn on Motion for

Rehearing on May 4, 1971, appears in Appendix

C at page A- 21.

. The judgment rendered on Rehearing by the

United States Court of Appeals on May 4, 1971

reported in 442 F 2d 408, without written opin

ion appears in Appendix C at page A- 22. The

Order of the United States Court of Appeals

accompanying said judgment denying (the Court

having been polled by one of its members)

1, for rehearing en banc appears at page

-22.

. The denial by this Court (Mr. Justice Douglas

having been of the opinion that certiorari should

have been granted) on October 12, 1971, re

ported in 404 U.S. 865, petitioner’s application

for Writ of Certiorari appears in Appendix C at

page A- 24.

. The Order issued by the United States District

Court on February 18, 1972 denying petition-

er’s application for reinstatement of his Section

oie action to inactive status on the docket of

the district court appears in endi

a Appendix C at page

. The Order issued by the U.S. District Court on

February 23, 1972 denying petitioner’s motions

for leave to file petition for reinstatement and

Second Amended Complaint [because deemed

premature prior to further appeal in state ad-

ministrative proceeding] appears in Appendix C

at page A-27, A-28.

JURISDICTION

1. The Jurisdiction of this Court is invoked under 28 U.S.C.

A. Section 1254

(1) which provides:

“Cases in the courts of Appeals may be re-

viewed by the Supreme Court by the Follow-

ing methods: “(1) By writ of certiorari

granted upon the petition of any party to any

civil or criminal case, before or after rendition

of judgment or decree;”’

2. The judgment of the United States Court of Appeals for

the Fifth Circuit was entered on November 20, 1978. A

timely motion for rehearing was denied on December 20,

1978.

QUESTIONS PRESENTED

Gene Ball, petitioner, an untenured math teacher, under

contract to teach during the 1969-70 school year at the Tivy

High School in Kerrville, Texas, was discharged on September

3, 1969 as a result of his refusal to shave a van-dyke beard he

had cultivated during the summer. He successfully challeng-

ed his discharge before state administrative bodies, receiving

favorable decision from the Texas State Board of Education

on January 5, 1970. Eight days after respondents filed ap-

peal in state district court from the administrative order in

petitioner’s favor, petitioner filed suit under 42 U.S.C.A.

Section 1983 in United States District Court seeking rein-

statement, back pay and damages. When advised by the

United States District Court that he could pursue his Section

1983 action in federal court only after disposition of respon-

dents pending appeal in state court from the administrative

order, petitioner sought to hasten matters by abandoning the

administrative order in his favor (it was now April 2, 1970

and the state administrative order was jurisdictionally limited

to the 1969-70 school year only). The United States District

Court responded on June 5, 1970 by dismissing petitioner’s

Section 1983 action due to his failure/refusal to exhaust

remedies available to him in the pending state administrative

proceeding. The dismissal was expressly without prejudice

to re-instatement of the Section 1983 action in United

States District Court, provided the pending state adminis-

trative proceeding was completed by petitioner in a good

faith adversary manner. The U. S. Court of Appeals affirm-

ed without written opinion. This Court on October 12, 1971

denied certiorari. Petitioner then returned to state court to”

comply with the mandate of the Order of June 5, 1970. Up-

on, on February 18, 1972, receiving adverse decision from

the State District Court, he petitioned the U.S. District Court

for reinstatement of his Section 1983 action. Reinstatement

was deemed then premature by the U.S. District Court, the

Court noting in its order of February 23, 1972 that petition-

er had an additional right of appeal under state law which

must first be exhausted in order to satisfy the stipulation of

the order of June 5, 1970. Petitioner then filed the requisite

appeal from the adverse decision of the State District Court.

Reported decisions of the Texas Court of Civil Appeals rend-

ered in the state administrative proceeding give indication

of reason administrative proceeding required until May of

1976 for final resolution (Ball v. Kerrville Independent

School District, 504 S.W. 2d 791 (Tex. Civ. App. 1973, err.

Ref. n. r. e.) and Ball v. Kerrville Independent School Dis-

trict, 529 S. W. 2d 795 (Tex. Civ. App. 1975, err, ref. n. r.

e.). Almost simultaneously with issuance of final mandate

in the state administrative proceeding, Ball, in May of 1976,

petitioned the U.S. District Court for reinstatement of his

Section 1983 action, alleging that full success in the state

administrative proceeding established beyond reach of argu-

ment that he had performed in a “good faith adversary man-

ner’, thus, finally, satisfying the stipulation for reinstatement

in the Order of June 5, 1970. The U.S. District Court did

not agree. While acknowledging the earlier stipulation that

petitioner’s Section 1983 action would be reinstated provid-

ing Ball completed the state administrative proceeding as

required, the U.S. District Court by Order dated November

19, 1976 found that petitioner had not performed in the re-

quisite good faith adversary manner in the state proceeding

and finally dismissed Ball’s Section 1983 action. Petitioner’s

failure, as determined by the U.S. District Court, was that he

“deliberately withheld his claim for reinstatement to the

position he occupied before he was dismissed’’. Petitioner's

effort on appeal was, therefore, devoted to demonstration

that he had successfully obtained all relief which the state

court had jurisdictional power to grant in the administrative

proceeding, specifically, that the Texas State Board of Edu-

cation, whose powers are limited by statute to correcting

abuse of discretion in lower school authorities, lacked juris-

dictional power to confer on petitioner any rights additional

to those vested in him under his one-year teaching contract

for the 1969-70 school year. By its decision of November

20, 1978, review of which is here sought, the U.S. Court of

Appeals bypassed this quesiion entirely and affirmed the dis-

missal of petitioner’s Section 1983 action by the U.S. District

Court by what it called a ‘‘different methodology.” The U.S.

> = POR SP RS

Court of Appeals determined that petitioner had ‘‘failed to

raise a substantial federal question’’. Thus, and on its own

motion, the U.S. Court of Appeals, in effect, sustained the

dismissal by granting a summary judgment on the merits

in favor of respondents. The broad question thereby arising

is:

Whether such summary disposition by the Court of

Appeals can be sanctioned under the facts here

presented.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

Constitution of the United States, Amendment XIV, Section

‘‘. ,. . Mor shall any state deprive any person of life, liberty

or property without due process of Law; nor deny to any

person within its jurisdiction the equal protection of the

Laws.”

Title 42 U.S.C.A. Section 1983:

‘Every person who, under color of any statute, ordinance,

regulation, custom or usage, of any state or territory, sub-

jects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any Rights, privileges, or immunities secured

by the Constitution and Laws, shall be liable to the party

injured in an action at Law, suit in equity, or other proper

proceeding for redress.”’

Additional jurisdictional basis invoked is:

28 U.S.C.A., 1331;

28 U.S.C.A., 1343 (3) and (4); and

28 U.S.C.A., 2201 and 2202

STATEMENT OF FACTS

Over the past nine and- one-half years this case has pro-

gressed through three state administrative: levels; through

each of the three levels of state courts twice; and with this

application for writ of certiorari is, for the second time, at

the pinnacle of the three levels of federal courts. It is against

this background that Gene Ball, petitioner, comes to this

Court on this second occasion with not only the Identical

pleas, but also the identical caution presented almost eight

years earlier in Cause No. 70-199. First the caution:

Whether or not, Gene Ball, petitioner (except to

establish that he has plead a cause of action - that

the questions raised in his Section 1983 action are

not - and never were - “wholly unsubstantial and

frivolous’’) is ultimately entitled to relief on merits

is not here in issue - because no issues which reach

to the merits of his Section 1983 federal action are

now, anymore than they were eight years ago,

ripe for review; ;

Then, the plea:

The sole question is whether he is entitled to his

day in Court (or now, eight years later, whether he

has earned his day in Court).

The essential facts lack complexity, Gene Ball had taught

math at the Tivy High School in Kerrville, Texas, for the six

years immediately preceding the 1969-1970 school year. No

hint of criticism as to his competency as a math teacher has

been raised during these six years nor is it now. His contract

for the 1969-1970 school year was terminated on September

3, 1969, for the sole reason that he refused to shave a Van-

Dyke style beard which he cultivated during the summer of

1969. This petition for review on writ of certiorari by the

Supreme Court of the United States is a link in the chain of

endeavor in which Mr. Ball has been engaged since Septem-

ber 3, 1969, to secure re-instatement to his teaching posi-

tion at the Tivy High School. The following is a synopsis

of his efforts in this regard to date:

1. September 15 - open hearing held before

respondents, The Board of Trustees of the

Kerrville Independent School District. This

meeting was convened for the express purpose

of hearing evidence or points of view relevant

to the earlier termination of Mr. Ball’s con-

tract on September 3, 1969;

2. September 23 - closed meeting held by res-

pondent board members after which they

announced that they would not retract their

action of September 3, 1969, at which time

they had terminated Mr. Ball’s 1969-1970

teaching contract;

3. November 19 - hearing of Mr. Ball’s appeal

from the respondent board members action of

September 3rd, had before Dr. Edgar, Com-

missioner of Education of the State of Texas,

in Austin, Texas (Dr. Edgar supported the Res-

pondent board members by decision rendered

December 11);

(during 1970)

4. January 5 - hearing of Mr. Ball’s appeal from

the Commissioner’s ruling had before the State

Board of Education in Austin. The State

Board of Education is the highest adminis-

trative body established to govern public edu-

cation in Texas. The jurisdictional power of

the State Board where, as here, reviewing term-

ination by lower school authorities of a teach-

er’s admittedly valid teaching contract during

the term of the contract, is limited to correct-

ing abuse of discretion in lower school authori-

ties, and cannot extend to questions of law.

Dallas v. Moseley, 286 S. W. 497 (Tex. Civ.

App. - Dallas, 1926). The State Board over-

turned the Commissioner’s decision by a vote

of 8 to 7. The effect of the State Board’s de-

cision was to “restore the teacher and to make

his contract good from the beginning.” Hark-

ness v. Hutcherson, 38 S. W. 1120 (Tex. Sup.

Ct. 1897). Thus, arguably, on January 5,

1970, Mr. Ball’s state remedy was adequate.

This was at mid-term in the school year. His

one-year teaching contract (running from July

1, 1969 until June 30, 1970) was still in ef-

fect. The time when contracts were to be re-

newed for the next year was then over two

‘ i ik or

months away. The passage of time, however,

has caused this basis upon which to argue a

once-adequate state remedy to disappear;

. January 15, 1970 - at their next regularly

scheduled meeting after Mr. Ball’s position had

been vindicated by the State Board, respon-

dents considered his case. They took no

action;

. February 17, 1970 - at their next regularly

scheduled meeting, respondents again consid-

ered Gene Ball’s case. Again they took no ac-

tion. That Gene Ball’s intention was to resolve

his difficulty at the administrative level and out

of court entirely is evident in the fact that he

awaited action from respondents at two of

their regularly scheduled meetings after the

State Board had held in his favor, and, then,

only after they filed their State Court Appeal

did he take his case to Court;

. February 19, 1970 - The Kerrville Independent

School District filed appeal in the District

Court of Kerr County, Texas, from the deci-

sion of the State Board of Education;

. February 27, 1970 - Gene Ball filed suit in

United States District Court seeking reinstate-

ment, back pay and damages (both actual and

exemplary). Consideration of the merits of

Gene Ball’s federal contentions, while pre-

mature before the record has been fully devel-

oped, nevertheless, seems here in order due to

the stated basis of the per curium opinion that

Ball’s claims on their merits are ‘‘wholly unsub-

stantial and frivolous’. The following, while

only an overview of his pleadings, is conclu-

sive, it is submitted, that such claims, if sup-

ported by proof, are substantial indeed. Indi-

cation of Ball’s Section 1983 allegations is:

(1) His teaching contract was terminated on

(2)

September 3, 1969 due to his failure to

shave a Van-Dyke beard he had cultivated

during the summer. Also respondents re-

fused for the same reason to offer Ball a

renewal contract for the 1970-71 and sub-

sequent school years. Such actions are

violative of the substantive Liberty and

Equal Protection of the Laws guarantees

of the Fourteenth Amendment. Lansdale

v. Tyler Junior College, 470 F 2d 659

(Sth Cir. en banc - 1972); Kelley v. John-

son, 96 S. Ct. 1440 (1976). Kelley, in

that interests of school authorities of

State of Texas are finally expressed herein

by State Board of Education (department

of executive branch of State Government

reviewing action of inferior department

same branch), reaffirms the teachings of

Lansdale as to burden of proof which

must be sustained by respondents in Mr.

Ball’s Section 1983 action;

On September 3, 1969, Mr. Ball’s teaching

(3)

contract was terminated by respondents

at a specially called meeting held on, at

the most, 3 % hours notice to him and in

his absence. Perhaps the requirement of

Texas Law (Art. 6252 V. A.C. S.) that

such meetings be held on no less than

three day notice can furnish guidance

here. If this three day requirement falls

short of constitutional gravity, neverthe-

less 3% hours notice is too short to meet

constitutional muster where everything is

at stake as here. See: 8] Harv. L. R. at

1452. In this instance, this violation of

Procedural Due-Process guaranteed by the

Fourteenth Amendment is compounded

by the fact that no rule exists in the Kerr-

ville Independent School District that

teachers not wear beards. Lucia v. Dug-

gan, 303 F. Supp. 112 (D. C. Mass. 1969);

See also: Lucas v. Chapman, 430 F 2d

945 (Sth Cir. 1970). Alleged is that his

good name, honor and integrity were

damaged within the meaning of Board of

Regents v. Roth, 408 U. S, (1972). That

respondents branded him with a badge of

infamy he was not to shed in Kerrville,

Texas for several years. Moreover, where

in issue is damages for termination of an

existing contract, Ball's “property” inte-

rest is certain, not illusory. Perry v. Sind-

erman, 408 U.S. 593 (1972);

Ball's right to equal protection of the laws

(4)

was violated. Lansdale v. Tyler Junior

College, 470 F 2d 659 (Sth Cir. en banc -

1972). Moreover, under the Equal Pro-

tection clause of the Fourteenth Amend-

ment it makes no difference even if the

threatened interest be a privilege rather

than a right. Even a privilege cannot, by

state action, be granted to some, but with-

held from others where the basis of classi-

fication is arbitrary. See: 81 Harv. L. R.

1439 at 1454 et seq... Mr. Ball was direct-

ed to shave his beard to make it easier to

enforce the policy that students be clean

shaven. The administration concedes that

two members of the faculty were then

wearing mustaches, although students

were forbidden mustaches as well as

beards;

That lack of tenure is no defense to an

allegation that a renewal contract was

denied a teacher because he sought to

exercise rights guaranteed by the Consti-

tution of the United States is well estab-

lished. Mt. Healthy School District v.

Doyle, 429 U. S. 274 (1977); Serzing v.

Fort Bend ‘Independent School District,

496 F 2d 92 (Sth Cir. - 1974); Pred v.

Board of Public Instruction, 415 F 2d

851 (1969); Ferguson v. Thomas, 430 F.

2d. 852 (1970); Lucas v. Chapman, 450

F 2d 945 (1970); See also: Johnson v.

Branch, 364 F 2d 177 (4th Cir. 1966);

Greene v. Howard University, 412 F. 2d

1128 (D. C. Cir. 1969); and Jones v.

Hopper, 410 F. 2d. 1323 (10th Cir.

1969). The basis underlying the above is

axiom that, though there may be no

“right’’ to a valuable government benefit,

the denial of it may not be predicated on

one’s exercise of rights guaranteed by the

Constitution of the United States. See:

Speiser v. Randall, 357 U. S. 513.

Again, let it be emphasized that no issue which

reaches to the merits is now in posture for re-

view. The purpose in indicating substantive is-

sues raised by the pleading is, at this point,

solely to show such claims to the both federal

and substantial in nature.

9. March 20, 1970 - Hearing had in United States

District Court on Mr. Ball’s motion for tempo-

rary injunction. Motion denied. The court

further ordered that a hearing would be set im-

mediately upon completion of administrative

proceedings pending in state court. Particularly

in view of later activity which precipitated the

order of dismissal of June 5, 1970, it would ap-

pear not inappropriate to, at this point, quote

language from the last few minutes of hearing

March 20th indicative that Mr. Ball did not later

unreaonsably misconstrue the spirit of the order

of March 23rd:

Egan: - “Your Honor, I have submitted to my

client as best I can, what the probabilities,

as I view them, would be if we let the

Kerrville Independent School District’s

appeal in Kerr County District Court *go

by default. In other words, if we, of our

own volition wiped off our success in

front of the state board.

_“Now I have minimized the import-

ance of dollars to Mr. Ball. I expect that

probably they are as important to him as

he has no extra source of money; he has

got a wife and a child, got another child

on the way, but if we win the state dis-

trict court, I expect there would be an

appeal from that. If we win again in the

Court of -- whatever they call it --”

The Court: “Fourth Judicial District”

Egan -“Fourth Judicial District here in San An-

tonio, I wouldn't be at all surprised if

there were an appeal from that to the

State Supreme Court. Now, the addition-

al step is doubtful - that the [U.S.] Su-

preme Court would review this kind of

thing involving state law, *but what does

seem very probable to me is that by winn-

ing we continue to postpone; ....I can't

make a definite statement at this time,

your Honor, but this is what our thinking

is on it and I expect a decision will be

made within less than a week. If my

client so decides (we will withdraw the

et hal Pr

“CDOT FE RI

answer that I filed in Kerr County District

Court. We will let that one *go by de-

fault and we will continue down here,

your Honor.”

The Court: - “Well, if you adopt that course

now, of course, I don’t know; it’s been al-

most 9 years since I have practiced in

state court. I don’t remember exactly

what the rules are.

Can the case be dismissed or default judg-

ment obtained, or if they obtain a default

judgment,then you have resjudicata to

worry about? I don’t know. I think this

is something you'd better give some

thought to, *but if the situation there in

Kerr County is eliminated, then there

would be no reason why this Court

couldn’t proceed with it."’

*emphasis supplied

(from pages 174, 175 of record from hearing on

Temporary Injunction - Appendix t» briefs in

Court of Appeals, pages 38, 39, 40)

10. April 2, 1970 - Mr. Ball filed Second An. aded

Answer in the state court appeal then pending,

in effect, inviting the state court to hold ad-

versely to him on the asserted ground that he

had neither the financial resources nor the time

to engage in appellate action in the state courts

which would probably follow were he success-

ful at the trial level (Mr. Ball had reserved his

federal issues from the state proceeding for

later determination by a federal court under

the doctrine of England v. Louisiana State

Board of Medical Examiners, 375 U.S. 411

(1964) ;

11. May 13, 1970 - Show cause order entered by

United States District Court requiring Mr. Ball

to show cause why his federal case should not

be dismissed in the event that he either failed

or refused to contest the state proceeding in a

good faith effort to win it. The order stated

that ‘‘England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411 (1964),

recognized that a party may retain his right to

pursue his federal claims in federal court by the

simple expedient of informing the State Court

that he intends, should the State Court hold

against him on the question of state law to re-

turn to the District Court for disposition of his

federal contention;”’

12. June 5, 1970 - Order of dismissal entered by

U. S. District Court (but without prejudice to

reinstatement provided he completed the state

court proceeding in a good faith adversary

manner) due to Mr. Ball’s failure and/or re-

fusal to exhaust the administrative remedies

available to him in State Court. In view of the

per curiam majority opinion of the U.S. Court

of Appeals that Ball’s claims on their merits

or.

are “wholly unsubstantial and frivolous’’, it

seems in order to again emphasize here that the

dismissal from U. S. District Court was solely

on procedural grounds. Gene Ball’s case was

not dismissed from Federal District Court for

failure to state a cause of action, or on sum-

mary judgment, or for any reason which re-

flects on the merit of his federal claims. While

neither then nor now presented as findings of

the court, two expressions from the bench; at

the conclusion of the hearing, March 20, 1970,

on petitioner’s application for temporary in-

junction, after which there have been no

further proceedings of the merits, indicated

that the federal district court did not regard

Gene Ball’s federal claims to be frivolous. On

page 33 of the Appendix, the court observed:

“*Now, if this had happened about the

time the school year began, I don’t think

I would have been hesitant in granting a

temporary injunction on the state of the

record as it is now, but what I am con-

cerned about is the fact that we are to-

ward the end of the school year.”’

*emphasis supplied.

and on page 36 is found the following statement of

the court:

“*] think that he has raised a serious constitu-

tional issue in this case, a very serious issue,

20 ya

and I certainly do not want 46 do anything to

deprive him of the right” to litigate it in this

court if he feels that’at some time he has not

had full opportdnity to do so in the state

court, *but | do not think that in the mean-

time that I should interfere with the processes

that are now in motion in the state court.”

_ *emphasis supplied

The above are, at most, offhand expressions by the

court and based on a record not then or now fully

developed on its merits. They are quoted here

solely because so clearly indicative that Gene Ball’s

federal claims were not regarded as unsubstantial

by the district court after the record had developed

to its present posture. Whether or not Gene Ball

has a meritorious substantive federal claim is simp-

ly a question not ripe for review. The issues pre-

sented for review involve now, no less than in

1971, remedies rather than rights. They are pro-

cedural rather than substantive. As reflected in the

language quoted from the bench as well as from

the orders of the District Court issued March 23,

1970 (denying temporary injunction); May 13,

1970 (show cause); June 5, 1970 (dismissal), Feb-

rurary 18, 1972 (derlying reinstatement to inactive

status); February 23, 1972 (denying reinstatement

until appeal); and November 19, 1976 (final dis-

missal); it is clear that the substantive merit (or

lack of it) of Mr. Ball’s federal claims played no

part in the dismissal of his suit from federal district

court.

SO ee

rarer str er

= penn oe

POPES:

1h ETE

Mr. Ball’s position as to the procedural issue, the

sole issue upon which the dismissal from the U.S.

District Court was expressly based is - as is devel-

oped fully in his brief filed in the U.S. Court of

Appeals:

That he has fully complied with the condition

stated in the order of June 5, 1970, and affirm-

ed by the U.S. Court of Appeals under Rule 21

on May 4, 1971.

13. December 17, 1970 - Gene Ball’s appeal to the

U.S. Court of Appeals was denied. Speaking

per curiam, the court expressed its reasoning as

follows:

“The Appellant, Gene Ball, has not de-

monstrated that he has any federally pro-

tected right which has been violated.’’

(during 1971)

14. May 4, 1971 - On petition for rehearing, the

U.S. Court of Appeals withdrew its original

opinion and substituted the following:

“Judgment affirmed. See Local Rule 21.’

Gene Ball’s Petition for rehearing en banc was

also denied, the court having been polled at the

request of one of its members and the majority

of the Circuit Judges in active service not hav-

ing voted in favor of it;

15.

October 12, 1971 - Gene Ball’s Petition for

Writ of Certiorari denied by ‘‘this Supreme

Court. Mr. Justice Douglas was of the opinion

that certiorari should have been granted;

(during 1972)

16.

17.

January 18, 1972 - Pleading filed by Mr. Ball

in U.S. District Court entitled: ‘‘Information to

the Court and Petition for Reinstatement to In-

active Status on the Docket of this Court Pend-

ing Completion of Administrative Proceedings

now Pending in State Court by Plaintiff in a

Good Faith Adversary Manner.’’ This pleading

reiterated Mr. Ball’s ultimate prime goal of

reinstatement to his teaching position and re-

cited procedural happenings in state court pro-

ceeding then to date. It raised spectre of later

limitations issue and emphasized ultimate

necessity of return to federal court due to

absence of even “‘color’’ of any State remedy,

adequate or otherwise, to reinstatement to his

teaching position and/or damage claims other

than for unpaid salary under one-year teaching

contract; no matter what was the outcome of

the state proceeding;

February 18, 1972 - Order of U.S. District

Court denying reinstatement to inactive status

for failure to have then satisfied conditions of

order of June 5, 1970. This order was also

expressly without prejudice to petitioning for

reinstatement after fulfillment of conditions;

ore mee

REE VIP EES orp

oo eye ene nen

Shp ONPG Tg NEN OPED Ie

REY SPO rent veeae

18. February 18, 1972 - Order of Texas State

19,

20.

Board of Education favorable to Gene Ball

overruled by state district court in administra-

tive proceeding;

February 20, 1972 - Petition for reinstatement

of his Section 1983 action to active status on

docket of U.S. District Court filed by Gene

Ball. Mr. Ball asserted that he had completed

the proceedings pending in State Court in a

good faith adversary manner satisfying con-

ditions of Order of June 5, 1970;

February 23, 1972 - Gene Ball’s petition for

reinstatement denied by U.S. District Court.

Basis for denial was statutory right under local

(Texas) law vested in Gene Ball to appeal ad-

verse decision of state district court to Texas

Court of Civil Appeals, hence conditions of or-

der of June 5, 1970, the court held, “‘still have

not been satisfied’, This action of U.S. Dis-

trict Court (though not anticipated by Mr.

Ball) was perfectly consistent with conditions

of its order of June 5, 1970, already upheld

and sanctioned by the U.S. Court of Appeals,

*as in such statutory proceedings powers of

review of administrative order vested in state

district court and Texas Court of Civil Appeals

are identical. It was exhaustion of state reme-

dies which was being required of Mr. Ball, the

U.S. District Court having earlier rejected Mr.

Ball’s attempt to give back his one year’s salary

at issue in the state proceeding (by inviting state

district court to hold adversely to him in appeal

filed by school district 8 days before he filed his

Section 1983 Action). Mr. Ball then did have

another step to go if he was to satisfy the order of

June 5, 1970 as upheld and sanctioned by the U.S.

Court of Appeals;

(during 1973)

21.

February 28, 1973 - Judgment rendered by

Texas Court of Civil Appeals reversing judg-

ment of the state district court but remanding

to trial court for a new trial as trial court had

limited its review to the administrative record.

(Ball v. Kerrville Independent School District,

504 S. W. 2d 791 (Tex. Civ. App. - San Anto-

nio, 1973);

(during 1974)

22.

23.

24.

January 30, 1974 - Motion for rehearing filed

by both Mr. Ball and the school district over-

ruled by the Texas Court of Civil Appeals;

April, 1974 - Application for Writ of Error fil-

ed by school district in Texas Supreme Court

refused n.r.e.;

October 3-10, 1974 - Trial on remand held in

state district court (under decision rendered by

Texas Court of Civil Appeals district court sitt-

ing in this statutory appellate posture was to

apply statutory standards of review to record

made in district court based on conditions as

they existed January 5, 1970, rather than to re-

cord made before Commissioner of Education

to which earlier review had been limited);

(during 1975)

25.

26.

27.

March 20, 1975 - Order of Texas State Board

of Education favorable to Gene Ball overruled

by state district court for the second time.

(this placed Mr. Ball in identical posture for

second time to which the U.S. District Court

had already responded in its order of February

23, 1972. Mr. Ball had no choice but to for

the second time appeal to the Texas Court of

Civil Appeals if he was to satisfy the condition

of the Order of June 5, 1970 of the U.S. Dis-

trict Court as affirmed and sanctioned by the

U.S. Court of Appeals;

October 15, 1975 - Judgment rendered by

Texas Court of Civil Appeals reversing decision

of the state district court and awarding unpaid

salary under 1969-1970 teaching contract to

Gene Ball with statutory interest from Febru-

ary 19, 1970 and costs;

November, 1975 - school district’s motion for

re-hearing denied by Texas Court of Civil

Appeals;

(during 1976)

28.

29.

30.

31.

32.

February 25, 1976 - Application for Writ of

Error filed by school district in Texas Supreme

Court refused n. r. e.;

March 12, 1976 - Last day for filing motion for

re-hearing in Texas Supreme Court by school .

district allowed to pass without action. Finali-

ty of Judgment of November 15, 1975 thus

assured ;

May 10, 1976 - Order authorizing transfer of

costs taxed by Appellate Court entered by

state district court, thereby removing last ob-

stacle to issuance of mandate;

May, 1976 - Gene Ball filed Petition that his

Section 1983 action be reinstated to active

status on the docket of the U.S. District Court.

That he had fully complied with the conditions

of the Order of June 5, 1970, he asserted was

established by his having obtained down to the

penny all relief possibly affordable in the state

proceedings;

November 19, 1976 - Order entered by U.S.

District Court denying Gene Ball’s Petition for

Reinstatement. As basis for its order the court

explained:

“.. , and it further appearing that in the

State Court Plaintiff “deliberately with-

held his claim for reinstatement to the

position he occupied before he was dis-

missed (the remedy he seeks in this court)

despite the fact *that under Texas Law

the effect of the Order of the State Court

would have been to afford him that relief,

thus fully demonstrating his *failure to

complete the administrative proceedings

in a good faith adversary manner as re-

quired, . .”

*emp hasis supplied

(during 1978)

33.

34.

November 20, 1978 - Judgment of dis-

missal by U.S. District Court affirmed by

U.S. Court of Appeals. Court of Appeals

used different ‘‘methodology’’. It found

Gene Ball’s federal claims on their merits

to be “wholly unsubstantial and frivo-

lous’. The U.S. Court of Appeals, then,

in effect, and on its own motion, granted

a summary judgment in favor of respon-

dents.

December 20, 1978 - Petitioner’s motions

for rehearing and rehearing en banc deni-

ed by U.S. Court of Appeals.

In the above is concluded resume’ of happenings in this case

to date. Seen in the above is that the issue presented for re-

view is whether summary judgment as here granted by U.S.

Court of Appeals on its own motion can here be sanctioned.

A final word before turning from the factual back ground of

this case.

The span of time consumed by this case may be not only

mind-bogging, but, also, misleading. Judge Godbold’s charac-

terization of Gene Ball as having been ‘“‘locked in mortal com-

bat” with respondents in the Staite Administrative proceed-

ing (opinion page 1104, Col. 1) is misleading.

That to whatever extent Ball ever became “locked in mor-

tal combat’’, such was in response to the mandate of the U.S.

District Court as affirmed by the U.S. Court of Appeals on

May 4, 1971, and then only after this Court denied certiorari

on October 7,1971. Rather than seeking to contest the state

proceeding, when filed, Gene Ball on April 2, 1970, express-

ly by pleading, invited the state court to hold adversely to

him, so he could proceed immediately in his Section 1983

action. It was in response to Ball’s failure to contest the state

proceeding that the U.S. District Court on June 5, 1970 dis-

missed his action but without prejudice to reinstatement,

provided Ball completed the state administrative proceedings

“in a good faith adversary manner’’.

Petitioner’s first appeal to the U.S. Court of Appeals was

based upon (in agreement with Judge Godbold) his assertion

that the stipulation in the district court’s order was not a

“barrier’’ to litigation of his federal claims in federal court

(with apparent concurrence of the Judge who polled the U.S.

Court of Appeals for rehearing en banc and Mr. Justice

Douglas who voted for certiorari).

So after denial of certiorari, Ball did all that was left for

him to do. He went back to the State Court and tried to win.

When he lost, however, on February 18, 1972, he immediate-

ly petitioned the U.S. District Court for reinstatement. Rein-

statement was deemed premature, however, as Ball was found

by the U.S. District Court to then have an as yet unexhausted

right to appeal in the state administrative proceeding.

What, really only then, became ‘‘mortal’’ about the com-

bat was Ball’s effort to keep it moving. This is evidenced by:

his 3 motions for trial setting in state district court; petition

for writ of mandamus filed in Texas Court of Civil Appeals

March 19, 1975 to make state district judge render judg-

ment; motion to expedite second appeal in Texas Court of

Civil Appeals filed August, 1975; Motion to expedite recent

appeal to U.S. Court of Appeals, denied January 14, 1977;

and motion for priority in calendering oral argument in U.S.

Court of Appeals, denied September, 1977.

Submitted is that Mr. Ball has done what he had to do and

as quickly as possible. The goal at all times was to get start-

ed on his Section 1983 action. As to the ‘‘vindication’’

(opinion p. 1104, Col. 2), Ball had stated through his attorn-

ey at the March 20, 1970 hearing in the U.S. District Court:

“. . . but what we are saying is that payment of

full salary is not what we want.* I suspect, with-

out knowing, that we could have had this for the

asking back in September without any adminis-

trative hearing any where, without any court pro-

ceeding. This is not what he wants, Your Honor."

(Appendix, page 21)

*not all that was sought. Only in Federal Court was rein-

statement (including back pay) and damages available.

REASONS FOR GRANTING THE WRIT

1. The finding of the U. S. Court of Appeals that Gene

Ball failed to raise a substantial federal question conflicts

directly with this Court’s decision in Kelley v, Johnson,

425 U.S. 238 (1976). The discharge of petitioner for re-

fusal to remove his van-dyke beard and refusal to grant him

renewal contracts for the same reason violated his right to

substantive “liberty’’ guaranteed by the Due Process Clause

of the Fourteenth Amendment.

At the outset let it be noticed that only the procedural

aspects of the Due Process Clause of the Fourteenth Amend-

ment were addressed by the majority in their per curiam

opinion. All cases cited by the majority in support of their

conclusion that petitioner ‘‘failed to raise a substantial fed-

eral question’’ relate only to the procedural aspects of Due

Process. But Gene Ball’s more significant allegation, over-

looked also by Judge Godbold in his concurring opinion, is

that his substantive right to “liberty’’ guaranteed by the

Fourteenth Amendment was violated by respondents by his

constitutionally unacceptable discharge and by their refusal

for the same reason to offer him a renewal contract for the

1970-71 and subsequent school years. As stated by this

Court in Kelley, the Due Process Clause of the Fourteenth

Amendment provides broader protection than was recogniz-

ed by the Court of Appeals;

“ This section affords not only a procedural guar-

antee against the deprivation of “Liberty”. *but

likewise protects substantive aspects of Liberty

against unconstitutional restrictions by the State.

Board of Regents v. Roth, 408 U.S, 564, 572

ee eee

(1972); Griswold v. Connecticut, 381 U.S. 479

(1965), White, J., concurring.”’

(425 U.S. at 244)

*emphasis supplied

One perhaps vital point of distinction exists between the

situation of the policeman in Kelley and the teacher (petit-

ioner) here. This being that in Kelley the Police Force of

Suffolk County, New York spoke for the State of New York.

In petitioner’s case, however, it is not respondents but the

Texas State Board of Education which speaks for the State

of Texas. Explanation is required.

First of all it is respondents (and their successors) who, in

Texas, as managing agents of the local school district (which

under Texas Law is like a municipal corporation, Love v.

Dallas, 40 S. W. 2d 20 (Tex. Sup. Ct. - 1931), have exclusive

power to hire and dismiss teachers. Texas Education Code,

Sections 13-101 - 13-114. Respondents, then, are the per-

sons in interest for purposes of relief sought by petitioner in

his Section 1983 action. Harkless v. Sweeny Independent

School District, 427 F.2d 319 (Sth Cir. - 1970); City of

Kenosha v. Bruno, 412 U.S, 507 (1973); Sterzing v. Fort

Bend Independent School District, 496 F 2d 92 (5th Cir. -

1974). BUT THE POSITION OF THE STATE OF TEXAS,

AS EMPLOYER, WITH RESPECT TO THE DISCHARGE

OF PETITIONER FOR REFUSING TO SHAVE HIS VAN-

DYKE BEARD IS EXPRESSED NOT BY RESPONDENTS,

BUT BY THE TEXAS STATE BOARD OF EDUCATION.

This is because under applicable Texas Law the question of

whether or not good cause exists for discharge of a school

teacher is in Texas a question of fact relating to the internal

affairs of a public school and, as such, is relegated ultimately

to the discretion of the Texas State Board of Fducation,

Gragg v. Hill, 58 S. W. 2d 150 (Tex. Civ. App. - Waco, 1933)

err. ref.; Blair v. Board of Trustees, Trinity Independent

School District, 161 S. W. 2d 1030 (Tex. Civ. App. - 1942).

As explained in Whitmarsh v. Buckley, 324 S. W. 2d 298

(Tex. Civ. App. - Houston, 1959) at 303:

““ |. The statutes all contemplate ultimate super-

vision of administrative affairs of our public

schools by the State Board of Education. Jn ap-

peals to them there is one department of the exe-

cutive branch of the government reviewing the

action of an inferior department of the same

branch of government.”

Perhaps ultimate authority that the State of Texas as employ-

er has here expressed itself through the State Board of Edu-

cation is that such has become the law of this case. Ball v.

Kerrville Independent School District, 504 S. W. 2d 791

(Tex. Civ. App. - 1973) err. ref. n. r. e.; Ball v. Kerrville In-

dependent School District, 529 S. W. 2d 792 (Tex. Civ. App.

- 1975) err. ref. n. r. e.

Here petitioner has sought the protection of the Four-

teenth Amendment, (as in Kelley) not as a member of the

citizenry at large, but as an employee of the Kerrville In-

dependent School District. If it must follow here (as in

Kelley) that the interest of the State as Employer is to be

decisive in assessing the quantum of proof to be sustained,

arguably it should shift the burden to respondents to demon-

strate petitioner’s choice to present himself to the world with

a van-dyke beard to be irrational (an even tougher test than

the clear and present danger test applied where limitation of

First Amendment freedoms is in issue, and, incidentally, the

test established en banc by the Court of Appeals for the Fifth

Circuit where an adult’s freedom to wear his hair as he

pleases is in issue. Lansdale v. Tyler Junior College, 470 F.

2d 659 (5th Cir. - en banc - 1972) Cert. denied, 411 U.S.

986)).

Speaking for the Court in Kelley, Mr. Justice Rehnquist

assumed that the citizenry at large had a ‘‘liberty’’’ interest

in matters of personal appearance. Mr. Justice Powell, con-

curring, found no negative implication in the opinion with

respect to a liberty interest within the Fourteenth Amend-

ment as to matters of personal appearance citing Poe v.

Ullman, 367 U.S. 497 (1961) at 541-543. Mr. Justice Powell

further noted that the State in Kelley had an interest in regu-

lating the appearance of its police officers which outweighed,

there, the officer’s individual liberty interest. Kelley, how-

ever, and throughout, was carefully limited to its context of

a uniformed police force. As pointed out by judge Godbold

with reference to Kelley in his concurring opinion, ‘‘It hard-

ly seems possible that such considerations apply to a high

school teacher, but in any event this would be an issue for a

trial court to address and decide."’ (opinion below, page

1103, Fn 2).

A further distinction from Kelley, is that here no rule ex-

isted in the Kerrville Independent School District that teach-

ers not wear beards. Nor was there such a rule after Septem-

ber 3, 1969, the date of petitioner’s discharge, nor does such

a rule exist at the present time. Ball v. Kerrville Independent

School District, 529 S. W. 2d 792 (Tex. Civ. App. - 1975) err.

ref. n. r. e. at 794; cf. Lucia v. Duggan, 303 F. Supp. 112

(D. C. Mass. - 1969).

In Kelley, due to lack of specific guidance in earlier deci-

sions of this Court, it was assumed that the citizenry at large

has a “‘liberty’’ interest within the Fourteenth Amendment in

matters of personal appearance. Respectfully submitted is

that the following explanation for this silence offerred by

Mr. Justice Marshall in his dissenting opinion in Kelley (425

U. S. 249-256) is supported by both history and logic:

‘* If little can be found in past cases of this Court

or indeed in the Nation’s history on the specific

issue of a citizen’s right to choose his own personal

appearance, it is only because the right has been so

clear as to be beyond question. When the right has

been mentioned, it sexistence has simply been

taken for granted.”

(425 U. S. 251)

Submitted is that in Judge Doyle’s reasoning in Breen v.

Kahl, 296 F. Supp. 702 (W. P. Wisconsin - 1969), aff’d 419

F 2d 1034 (7th Cir. - 1969) cert. denied 308 U. S. 937, was

foreseen most, if not all, factors with which courts would

later wrestle in the many personal appearance cases to follow.

The conclusion of Judge Doyle in 1969 is consistent with the

teachings of Kelley:

“* Equally inevitable, I believe, would be a judg-

ment that the *freedom of an adult male or fe-

male to present himself or herself physically to the

world in the manner of his or her choice is a high-

ly protected freedom. An effort to use the power

of the state to impair this freedom must also bear

a substantial burden of justification’, whether the

attempted justification be in terms of health, phy-

sical danger to others, obscenity, or ‘distraction’ of

others from their various pursuits. For the state to

impair this freedom, in the absence of a compelling

subordinating interest in doing so, would *offend

a widely shared concept of human dignity, would

assault personality and individuality, would under-

mine identity, and would invade human ‘being’. It

would *violate a basic value ‘implicit in the con-

cept of ordered Liberty’, Palko v. Connecticut,

302 U. S. 319 (1937). It would deprive a man or a

woman of liberty without due process of law in

violation of the Fourteenth Amendment. See

Griswold, 381 U. S. at 499-500 (Harlan, Jr., con-

curring).”’

(296 F. Supp. at 706)

*emphasis supplied

Footnoted here was that discussion of military and

penal institutions (the rationale of the uniformed

police force of Kelley) would follow at later point

in decision.

Submitted at this point is that petitioner’s allegation of

violation of the substantive aspects of ‘‘liberty’’ within the

Fourteenth Amendment raised a substantial federal ques-

tion. This would require remand to the U. S. District Court

for resolution, unless it can be said as a matter of law that

award of NONE of the relief sought by petitioner in the trial

court, being:

(1) reinstatement to his teaching position;

(2) back pay for all or any years after the 1969-

70 school year and whether viewed as part of

equitable reinstatement or basis for award of

damages; or

(3) damages, both actual and exemplary and dis-

tinguished from back pay, alleged to have re-

sulted from violation by respondents of pe-

titioner’s federally protected rights’,

could be based upon ADMITTED violation by respondent’s

of petitioner’s federally protected guarantee of substantive

“‘liberty”’ as alleged.

2. The finding of the U. S. Court of Appeals that Gene

Ball failed to raise a substantial federal question conflicts

directly with recent decisions. of the Fifth Circuit, being

Lansdale v. Tyler Junior College, 470 F 2d 659 (Sth Cir.

- 1972 en banc) cert. denied 411 U. S. 986; and Hander v.

San Jacinto Junior College, 519 F 2d 273 (Sth Cir. 1975).

Moreover, under the Equal Protection Clause of the Four-

teenth Amendment it makes no difference if the threatened

interest be a privilege rather than a right. Even a privilege

cannot be granted to some by state action, but withheld

from others where the basis-of classification is arbitrary. The

discharge of petitioner for refusal to shave his van-dyke

beard and refusal to offer him a renewal contract for the

1970-71 and subsequent vears violated his right to equal pro-

tection of the laws guaranteed by the Fourteenth Amend-

ment,

Two en banc decisions handed down by the Fifth Circuit

back-to-back are best considered together. In Karr v.

Schmidt, 460 F 2d 609 (5th Cir. - en banc, 1972) cert.

denied 409 U.S. 989, by a divided court (8-7), a plurality of

the U. S. Court of Appeals for the Fifth Circuit, in specific

context of a sixteen year old high school student challeng-

ing a grooming code formally adopted by school authorities,

upheld the school authorities and announced a per-se ruling

that such reulations are constitutional. Thus Karr, as finally

decided, vindicated the tenor of the language employed by

Mr. Justice Black in his earlier (February 11, 1971) opinion

pro-se denying plenary relief sought by Karr. Karr v.

Schmidt, 401 U. S. 1201 (Feb. 11, 1971). From this, how-

ever, it does not follow that Karr was ever apposite here.

The VU. S. District Court when citing Mr. Justice Black’s

pro-se opinion to the petitioner, in its order of February 23,

1972 (Appendix C - pages (A-12, 13, 14), apparently mis-

understood that the orbit of Karr (and of Mr. Justice Black’s

pro-se opinion) was carefully delimited to challenge by a

high school student to a formalty adopted dress code. Em-

phasis to the above was specifically added by. the court:

“It seems patently absurd to suggest that our deci-

sion here today provides a basis for sustaining a

state regulation requiring conventional haircuts for

the general adult population. Richards v. Thurs-

ton, 424 F 2d 1281, 1285; Mr. Justice Douglas

dissenting opinion to denial of certiorari in Ferrell

v. Dallas Independent School District, 392 F 2d

697 (Sth Cir. - 1968) reported 393 U. S. 856.

(Fn. 13, 460 F2d at 615)

Lingering doubt, if any, that Karr, as decided, was never

apposite here was removed by the Fifth Circuit, again en

banc, in sequential decision handed down six months later.

In Lansdale v. Tyler Junior College, 470 F 2d 659 (Sth

Cir. - 1972 en banc) cert. denied, 411 U. S. 986, the court,

again divided (9-6), upheld a college student’s, and, legis-

latively, all students similarly situated, claim that enforce-

ment of a particular section of the ‘‘Dress Code’ applicable

to hair length was arbitrary, unreasonable and violative of

rights secured by the Equal Protection Clause of the Four-

teenth Amendment. Decisive in Landsdale was that, even if

by necessity arbitrarily placed, the line between remaining a

child and becoming an adult was drawn between the high

school door and the college gate. The basis for Karr was

finding that regulation of personal hair grooming of high

school students by officials charged with the important state

objective of regulating young people does not back a rational

basis. In Lansdale, the court drew the line where, absent

extraordinary facts, this rational basis ceases to exist with

reference to the adult population at large. In the language of

the Court:

‘“ . .Today the Court affirms that *adult’s consti-

tutional right to wear his hair as he chooses super-

cedes the State’s right to intrude. *The place

where the line of permissible hair style regulation

is drawn is between the high school door and the

college gate.”’

(470 F 2d at 633)

*emphasis supplied

In Hander v. San Jacinto Junior College, 519 F 2d 273 (Sth

Cir. - 1975) opinion aff’d on petit. for reh., 522 F 2d 204

(Sth Cir. - 1975), Lansdale was applied to a college-level

teacher. In the above three cases from the Fifth Circuit,

and analysis of distinction between a high school teacher and

the uniformed policeman before this Court in Kelley, lies the

cited basis for Judge Godbold’s conclusion in his specially

concurring opinion that:

‘* Ball would be *entitled to his day in court on

protection claim unless there is some barrier.”

(opinion page 1103, Col. 2)

*emphasis supplied

While, in the above is seen more than sufficient basis for

Judge Godbold’s conclusion that summary disposition is not

here warranted (absent other ‘‘barrier’’), there is still further

basis for application of the Equal Protection Clause here.

Under the Equal Protection Clause of the Fourteenth

Amendment in circumstances here it would make no differ-

ence even if the threatened interest be a privilege rather than

a right. Even a privilege cannot by state action be granted to

some, but withheld from others where the basis of classifi-

cation is arbitrary. See: 81 Harv. L. R. 1439, at 1454 et seq.

Mr. Ball was directed to shave his beard to make it easier to

enforce the policy that students be clean shaven. The admin-

istration concedes that two members of the faculty were then

wearing mustaches also students were forbidden mustaches as

well as beards.

Submitted at this point is that petitioner’s allegation of

violation of the Equal Protection of the Laws Guarantee of

the Fourteenth Amendment raised a substantial federal ques-

tion. This would require remand to the U. S. District Court

for resolution, unless it can be said as a matter of Law that

award of NONE of the relief sought by petitioner in the

trial court, being:

(1) reinstatement to his teaching position;

(2) back pay for all or any years after the 1969-

70 school year and whether viewed as part of

equitable reinsttement or basis for award of

damages; or

(3) damages, both actual and exemplary and dis-

tinguished from back pay, alleged to have re-

sulted from violation by respondents of pe-

titioner’s federally protected rights;

could be based upon ADMITTED violation by respondents

of petitioner's federally protected guarantee o/ the equal pro-

tection of the laws as alleged.

3. The finding of the U. S. Court of Appeals that Gene

Ball failed to raise a substantial federal question conflicts

directly with the decision of Court in Perry v. Sindermann,

408 U. S. 593 (1972); Board of Regents of State Colleges

v. Roth, 408 U. S. 564 (1972), and Paul v. Davis, 424 U.S.

693 (1976). The discharge of petitioner without hearing und

in his absence on September 3, 1969, and subsequent failure

to grant him a hearing prior to refusal of a renewal contract

for 1970-71 and subsequent school vears violated his right to

procedural due process guaranteed by the Fourteenth Amend-

ment.

Both Roth and Sindermann deal with non-retention of

untenured teachers. /’aul v. avis merely says that damage to

reputation outside of employment situation does not give

rise to action under the Procedural Due Process Clause.

Deemed self-evident, apparently (as by Justices Marshall and

Brennan in their dissenting opinion in Kelley and Judge

Doyle in Breen v. Kahl, Supra, that the general adult popu-

lace would enjoy a protected “‘liberty’’ interest in matters of

personal appearance), was that different rules govern in the

case of a teacher under contract, when discharged at the com-

mencement of his contract term without a hearing, in his ab-

sence, for a constitutionally proscribed reason, and for vio-

lation of a “Tule” which never existed. This, however, is

what happened on September 3, 1969 (the first day of classes

of the 1969-70 school year) to petitioner. It is true that al-

most two weeks later on September 15, 1969 (after extensive

publicity and damage to petitioner’s reputation) a hearing

was granted at which petitioner appeared with counsel. Al-

leged in petitioner’s Section 1983 action is that no evidence

was adduced at this hearing which could support respon-

dent’s action of September 23, 1969, when they “‘re-affirm-

ed” their earlier termination of Mr. Ball’s existing teaching

contract on September 3, 1969. No matter what the pro-

cedural safe guards might have been, there must be some re-

lation between matters presented at the hearing and the re-

sult thereof. Ferguson v. Thomas, 430 F 2d 852 (5th Cir.

1970). Moreover, Mr. Ball was discharged for violation of a

“rule”’ which “rule’’ does not, did not and never has existed.

cf. Lucia v. Duggan, 303 F. Supp. 112 (D. C. Mass. 1969;

Lucas v. Chapman, 430 F 2d 945 (5th Cir. -1970). Mr.

Ball’s property interest on September 3, 1969, the first day

of classes under his then-existing contract with respondents

is certain, not illusory. Perry v. Sindermann, 408 U. S. 593

(1972). The requisite employment relation between respon-

dents, acting under color of state law, and petitioner, their

employee dismissed during his contract term, was certain, not

illusory. Paul v. Davis, 424 U. S. 693 (1976).

The decision of this Count in Board of Regents of State

Colleges v. Roth, 408 U.S. 564 (1972) speaks of a “badge of

infamy’’ resulting from circumstances surrounding failure to

renew or re-hire as being requisite to trigger federal protec-

tion of procedural due process. Confusion may have resulted

from Mr. Ball’s having alleged severe damage to his reputa-

tion and standing in the community resulting from termina-

tion of his existing contract in violation of his federally pro-

tected right to procedural due process (as well as to the sub-

stantive aspects of “‘liberty’’ and equal protection of the

Laws guaranteed by the Fourteenth Amendment) over and

above loss of salary payable under the contract. Issues of

fact are here raised which must be determined by trial on the

merits in the U. S. District Court.

4. That there is no barrier (as Judge Godbold indicated

there was in his specially concurring opinion) to Mr. Ball

having his day in court on his claim to reinstatement, and

back pay.

In Mt. Healthy City School District v. Doyle, 429 U. S.

274, 97 S. Ct. 568 (1977) this court affirmed that:

‘* Doyle’s claims under the First and Fourteenth

Amendments are not defeated by the fact that he

did not have tenure. Even though he could have

been discharged for no reason whatever, and had

no constitutional right to a hearing prior to the de-

cision not to rehire him. Board of Regents v.

Roth, 408 VU. S, 564 (1972), he may nonetheless

establish a claim to reinstatement if the decision

not to rehire him was made by reason of his exer-

cise of constitutionally protected freedoms. Perry

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

Mr. Ball’s claim: is based on the equal protection and substan-

tive ‘“‘liberty’’ guarantees of the Fourteenth Amendment

rather than on the spescli guarantee of the First. While the

language used in Sindermann (408 U. S. 593) was broader, at

issue there was also a First Amendment question. In Sinder-

mann, this court did, however, indicate that a First Amend-

ment issue was not essential:

“For at least a quarter-century this Court has made

clear 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. */t may not

deny a benefit to a person that infringes his consti-

tutionally protected interests - especially, his in-

terest 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. “Such interference with constitutional

rights is impermissible."

(408 U. S. at 597)

*emphasis supplied

So while the language is broader - in Sindermann reinstate-

ment of a non-tenured teacher after expiration his contract

term could be placed in issue and decision vested, originally,

in the sound discretion of the trial court, as are all other mat-

ters of equity - in issue, again, in Sindermann, were First

Amendment Rights.

Perhaps in the test to be applied to determine if there has

been violation of federally protected rights, upon which any

remedy can be based may be found guidance. The “‘balanc-

ing’ test of Pickering v. Board of Education, 391 U. S. 563

(1968) was first applied in Mt. Healthy (429 U. S., at 284),

to initially determine that First Amendment Rights had been

violated. New in Mt. Healthy was the added requirement, to

be determined on remand in the trial court, that it must be

determined by a preponderance of the evidence that the de-

cision not to re-hire would not have been made in the ab-

sence of the protected conduct. If granted the remand to the

trial court that he is here seeking, Mr. Ball is prepared to es-

tablish there by preponderance of the evidence that the al-

leged infringement of his rights of ‘liberty’ and equal pro-

tection of the laws are not counterbalanced by legitimate

competing interests of respondents in promoting efficient

operation of the school. He is further prepared to establish

by requisite proof that neither his discharge nor subsequent

refusals to renew his one year teaching contract would have

happened in the absence of the protected conduct. What

still remains is that his is a claim based on the Fourteenth

Amendment, where in Mt. Healthy was an asserted violation

of a First Amendment Right.

While still looking at tests for guidance, it is seen that this

Court specifically observed in Kelley v. Johnson, 425 U. S.

238 (1976), with reference to distinction between assertion

of First and Fourteenth Amendment rights:

‘“‘More recently, we have sustained comprehensive

and sub-substantial restrictions upon activities of

both federal and state employees lying at the core

of the First Amendment. Civil Service Comm’n v,

Letter Carriers, 413 U.S, £48 (1973); Broadrick v.

Oklahoma, 413 U. S, 601 (1973). */f such regu-

lations may survive challenges based on the explicit

language of the First Amendment, there is surely

even more room for restrictive regulations of state

employees where the claim implicates only the

more general contours of the substantive liberty in-

terest protected by the Fourteenth Amendment.”’

(425 U. S. at 245)

*emphasis supplied

But making all reasonable allowance for whatever amount of

extra latitude or ‘‘more room” to which the State may be en-

titled when defending a claim based on “only the more gener-

al contours of the substantive liberty interest protected by

the Fourteenth Amendment”’, THIS IS STILL A FAR CRY

FROM SAYING THAT NO SUCH CLAIM COULD BE SUF-

FICIENT (AS COULD A FIRST AMENDMENT CLAIM)

GROUND UPON WHICH TO VEST EQUITABLE DISCRE-

TION IN THE TRIAL COURT TO GRANT REINSTATE-

MENT. Such is the necessary conclusion, however, if Judge

Godbold’s conclusion, ‘‘on the facts of this case, the theory

[that Ball is now entitled to reinstatement] blinks at reality’’

(opinion page 1104, Col. 1) is to be sustained. It is, perhaps

of more than passing interest at this point to note the prob-

able effect of Jexas Law, that the interest of the State of

Texas with regard to petitioner’s personal appearance is ex-

pressed by the State Board of Education, rather than by

respondents, would be to shift the burden of proof placed on

the policeman in Kelley to the respondents at trial on remand

here. (See: discussion on pages 26 and 27, supra).

But Gene Ball's claim under the Fourteenth Amendment

to reinstatement is not rested solely on its substantive (and

peripherally, procedural) Liberty guarantee. As noted by the

majority per curiam opinion of the Court of Appeals and

emphasized by Judge Godbold, petitioner also challenges

his discharge and refusal of respondents to grant him a re-

newal contract for the 1970-71 and subsequent school years

as violative of his rights under the equal protection of the

laws guarantee. This Court can judicially notice the flood of

cases arising from displacement of untenured Negro teachers

with one-year contracts during the 1960’s and early 1970’s,

who were often reinstated after several years had passed. Per-

haps a landmark example is Johnson v. Branch, 364 F2d 177

(4th Cir. - 1966). Important here is that the result is achiev-

ed by application of judicial discretion to the equal protec-

tion of the laws guarantee of the Fourteenth Amendment.

Submitted is that petitioner is not barred from the orbit of

such protection, solely because he happens not to be a Negro,

if he can demonstrate an otherwise meritorious claim under

the Equal Protection Clause.. Also, only, incidentally, involv-

ing Negro Teachers was United States v. Cotton Plant School

District No. 1, 479 U.S. 671 (8th Cir. - 1973) wherein was

affirmed:

“The rule uniformly followed in this circuit as es-

tablished in Smith v. Board of Education of Morn-

ilton School District No. 32, 365 F 2d 770 (8th

Cir. 1966), is that a teacher who is *wrongfully

discharged is entitled to be *restored, as equitably

as possible, to the status quo, that is to his or her

position and equivalent salary status enjoyed prior

to the *discriminatory discharge."’

(479 F2d 673)

*emphasis supplied

Noteworthy is that in Webb v. Lake Mills Community

School District, 344 F. Supp (N. D. Iowa - 1972) where, the

findings of fact upon which reinstatement was there granted

read alsmost verbatim like Mr. Ball’s pleadings in the trial

court here, the district court relied upon Connally v. General

Contractor Co., 269 U. S. 385, for the following proposi-

tions specifically addressed to absence of a rule there:

“It is the prevailing law of the land that no person

shall be punished for conduct *unless such conduct

has been proscribed in clear and precise terms.”’

(344 F. Supp. at 801)

*emphasis supplied

As in Webb, here there was and is no rule proscribing facial

hair on teachers.

Reinstatement, as is the case with any equitable remedy,

is, in the first instance, vested in the sound discretion of the

trial court which is to be afforded latitude to weigh all fac-

tors leading to the remedy ultimately chosen, cf. Sterzing v.

Fort Bend independent School District, 496 F 2d 92 (5th

Cir - 1974) wherein a single limitation was imposed as

follows:

‘In declining to grant reinstatement [ however, the

sum of $20,000.00 had been awarded in lieu there-

of] *on the basis that it would be too antagonisic,

the court used an impermissible ground ... . En-

forcement of constitutional rights frequently has

disturbing consequences. Relief is not restricted to

that which will be pleasing and free of irritation.”

(496 F2d at 93)

*emphasis supplied

The plea of the petitioner with respect to reinstatement and

back pay, or combination of either as may be fashioned in

the sound discretion o; the district court based on weighing

of all circumstances after full hearing, finds echo in the

following from Unified School District No. 480 v, Epper-

son, 551 F 2d 254 (10th Cir - 1977), after weighing this

Court’s recent decision in Mt. Healthy:

“To reach a contrary result in the instant case

would to us be a bit incongruous, “in that we

would be holding that there was no relief or reme-

dy whatsoever for an admitted violation of a con-

stitutional right.”

(551 F2d at 260)

*emphasis supplied

5. There there is no barrier (as Judge Godbold indicated

there was in his specially concurring opinion) to Mr. Ball

having his day in court on his damage claims, both actual and

exemplary.

In Wood v. Strickland, 420 U. S. 308 (1975) this court

held that a school board member is not immune from dam-

ages under Section 1983 if he knew or reasonably should

have known that the action he took within the sphere of of-

ficial responsibility would violate the constitutional rights of

the person affected, or if he took the action with intention

to cause such result. In either case, this court held, the

action of the school official cannot be characterized as being

in good faith. This is exactly what petitioner has alleged in

his Section 1983 action which he seeks to have determined in

U. S. District Court.

In any event, immunity from damages does not ordinarily

bar equitable relief as well (Wood 420 U. S. at 314). Judg-

ment against the respondent board members in their official

capacities for equitable reinstatement and back pay would be

binding on their successors in office and hence on the School

District, itself. Harkless v. Sweeny Independeni School Dis-

trict et al, 427 F 2d 799 (5th Cir. -1970). This has in no way

been vitiated by City of Kenosha v. Bruno 412 U. S. 507

(1972). See: United Farm Workers of Florida Housing Pro-

ject, Inc. v. City of Del Ray Beach, 493 F 2d 799 (Sth Cir.

- 1974).

Petitioner has alleged as recoverable damages at law,

$7,500.00 actual damages and an additional sum of

$7,000.00 exemplary damages, all over and above back pay

sought. Such special damage claims if supported by proof,

are here recoverable. Lucia v. Duggan, 303 F. Supp. 112

(D. Mass-1969); cf. Sparks v. Griffin, 460 F. 2d 433 (5th

Cir. 1972) at 443; Williams v. Albemarle City Board of

Education, 508 F 2d 1242 (4th Cir. -1974) at 1244; Smith

v. Concordia Parish School Board, 387F. Supp. 887 (D. C.

La. -1975), at 890 and 891.

In Orr v. Trinter, 444 F. 2d 122 (6th Cir. 1971) cert.

denied 408 U. S. 943, is summarized the rationale here gov-

erning, as follows:

‘‘ Initially we recognize that plaintiff does not

have a right to public employment. Cafeteria and

Restaurant workers’ Union, Local 473, v. McEL

roy, 367 U. S. 886, supra. However, even though

‘one may not have a contitutional right to go to

Bagdad * * * the Government may not prohibit

one from going there unless by means consonant

with due process of Law.’ Homer v. Richmond,

110 U. S. app. D. C. 226, 229, 292 F 2d 719, 722.

Hence it is no longer open to debate that plaintiff

would be entitled to relief if the board had refused

to rehire him because he had exercised his rights as

guaranteed by the free speech clause of the First

Amendment, Pickering v. Board of Education,

391 U. S. 563, Board of Trustees of Arkansas A &

M College v. Davis, 396 F 2d 730 (8th Cir.) Cert.

denied 393 U. S. 962; by the self-incrimination

clause of the Fifth Amendment, Slochover v.

Board of Higher Education, 350 U. S. 551; by the

due process clause of the Fifth or Fourteenth A-

mendments, Greene v. McElroy 360 U. S. 474; or

by the equal protection clause of the Fourteenth

Amendment, Hatton v. County Board of Educa-

tion, 422 F. 2d 457 (6th Cir.); Rolfe v. County

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

are constitutionally impermissible reasons for re-

fusal to rehire a teacher. Conversely courts have

recognized as constitutionally permissible reasons

for refusal to rehire the fact that the applicant is

not as well qualified as another applicant, Brooks

v. School District, 267 F 2d 733 (8th Cir) cert.

denied 361 U.S. 894;. . .”

(444 F 2d at 134)

6. That even if (as was indicated by Judge Godbold in his

specially concurring opinion) the condition of the U. S. Dis-

trict Court in its order of June 5, 1970 and affirmed by the

Court of Appeals that Ball litigate in the state proceeding in

a good faith adversary manner was not a barrier to litigation

of his federal claims in federal court, Ball, with no choice,

did comply fully with the stipulation in the order of June 5,

1970.

From the statement of facts herein this court is aware that

background is as follows:

(1) Gene Ball initially presented his difficulty to

the State administrative system and was vin-

dicated at its highest level, the Texas State

Board of Education;

(2) Only after waiting well over two months after

the State Board of Education had ruled in his

favor, and then only after the respondents

had resolved their indecision by appealing

the administrative order in Ball’s favor to the

(3)

(4)

State District court, did Ball file his Section

1983 action in U. S. District Court;

When it became apparent that the U. S. Dis-

trict Court would not proceed with his Sec-

tion 1983 action while respondents’ appeal

from the administrative order was pending in

state district court, Ball filed pleading in the

state court asking the state court to rule

against him. This method of obtaining faster

action on the merits of his Section 1983

action, had been suggested to initially approv-

ed by the U. S. District Judge at the conclu-

sion of the March 20, 1970 hearing on Ball's

application for temporary injunction;

The U. S. District Court, however, then, and

after petitioner had implemented his suggest-

ed solution: (1) ordered Ball to show ovsse

why his Section 1983 action should not be

dismissed if he intentionally sought adverse

ruling in the state court rather than trying to

win; and (2) on June 5, 1970 dismissed Ball's

Section 1983 action, but without prejudice to

re-instatement provided Ball completed the

administrative proceeding then pending in

state court in a good faith adversary manner.

ALL LITIGATION WHICH HAS FOLLOW-

ED FOR THE PAST EIGHT AND ONE-

HALF YEARS IN BOTH FEDERAL AND

STATE COURTS HAS BEEN AIMED AT A

SINGLE PURPOSE-REINSTATEMENT OF

BALL’S SECTION 1983 ACTION. In short,,.

(5)

to get back to the starting place. After the

March 20, 1970 hearing on Ball’s Application

in U. S. District Court, there have been no

further activities on the merits of Ball’s Sec-

tion 1983 action. The U. S. District Court

has never at any subsequent time based any

order on the merits of Ball’s federal claims.

On two occasions, where procedural issues

alone were presented in both appeals, VU. S.

Court of Appeals has entirely bypassed the

procedural issues solely before it and, in ef-

fect, has, on its own motion, granted sum-

mary judgment in favor of respondents on

the merits. Had the U. S. Court of Appeals

not withdrawn it’s first such action (of De-

cember 17, 1970) and on May 4, 1971 sub-

stituted a rule 21 affirmance (during the five-

month interval the Court was being polled

by one of its judges for assembly en-banc)

the case would then (unless this Court had

granted certiorari) have died;

The VU. S. Court of Appeals did withdraw its

opinion of December 17, 1970 and this

Court (Mr. Justice Douglas dissenting) denied

review by certiorari on October 12, 1971 of

the Rule 21, (Local Rule 21 of U. S. Court of

Appeals for Fifth Circuit) affirmance of the

conditional order of June 5, 1970. Mr. Bal!

then, with no other choice if he was to ever

be permitted to try his Section 1983 action in

Federal court, entered the trenches in the

state proceeding with the purpose of winning

(6)

the pending state administrative action - or,

at worst, to perform in such a way as to later

satisfy the U. S. District Court that the “‘good

faith adversary manner” condition had been

satisfied ;

The happenings in the state administrative

proceeding, which required from October 12,

1971 until May, 1976 for final resolution,

are detailed in the statement of facts herein.

Determination by the U. S. District Court (by

its order of February 23, 1972) that appeal

to the Texas Court of Civil Appeals from ad-

verse ruling of the State District Court was

within the orbit of the ‘good faith adversary”’

performance required to satisfy the condition

for reinstatement in its order of June 5, 1970

may be singled out as the reason the adminis-

trative proceeding required the extra four and

one-half years. (This determination, however,

was 100% consistent with the order of June 5,

1970, as under Texas law review of such an

administrative order is governed in the Texas

Court of Civil Appeals by the identical three

statutory tests to which review in the state

district court is limited. There was no basis,

then, for appeal to the Sth circuit of the order

of February 23, 1972 entered by the U. S.

District Court. Ball had no choice but to

comply by filing the requisite state appeal if

he was to satisfy the condition for reinstate-

ment of his Section 1983 action as stipulated

in the order of June 5, 1970). In both de-

cisions of Texas Court of Civil Appeals (Ball

v. Kerrville Independent School District, 504

S. W. 2d 791 (Tex. Civ. App. - 1973, err. ref

n. r. e.) and Ball v. Kerrville Independent

School District, 529 S. W. 2d 795 (Tex. Civ.

App. - 1975, err. ref. n. r. e.)) is pointed out

that Ball had reserved his federal claims [ pur-

suant to England v. Louisiana State Medical

Examiners, 375 U. S. 411 (1964)] from the

state proceeding to be preserved for later dis-

position in the U. S. District Court. Progress

in the case, after U. S. District Court interpre-

ted its order of June 5, 1970 as requiring ap-

peal, was less rapid than Mr. Ball would have

preferred. Three frustrations were: (1) the

remand after first appeal; (2) the full year re-

quired to dispose of motions for rehearing

after first opinion of Court of Civil Appeals;

and (3) the 5 months required to prepare

statement of facts after second adverse deci-

sion in state district court. These are, of

course, and were received as normal in course

of litigation. Unusual only, was to be litigat-

ing at all where the primary goal could be

first even placed in issue in DIFFERENT

LITIGATION which could commence only

when and AFTER conclusion of the then cur-

rent litigation. Perhaps, partly in recognition

of this, the Texas Court of Civil Appeals

granted Ball’s motion to expedite the second

appeal to it immediately upon receipt of the

record. Prime example of Ball’s effort

throughout to keep this litigation moving was

(7)

his petition filed March 19, 1975 to manda-

mus the state district judge to render judg-

ment after second state district court trial.

By decision rendered October 25, 1975 the

Texas Court of Civils Appeals reversed the

state district court and ordered unpaid salary

for the 1969-70 school year, with interest, all

that was or could have been placed in issue in

the state administrative proceeding paid to

Mr. Ball. Subsequently the Texas Supreme

Court denied Respondents’ application for

writ of error and by May 10, 1976, though

the mandate was not to issue until June, all

matters about which question even might

arise in the state administrative proceeding

had been put to rest. It appeared that Mr.

Ball had satisfied the condition for reinstate-

ment of his Section 1983 action as stipulated

in the U. S. District Court’s order of June 5,

1970;

In May of 1976, Ball petitioned the U. S.

District Court for reinstatement of his Section

1983 action and for leave of court to file his

third amended complaint supported by his

seventh brief (all of which are reproduced in

appendix to briefs filed in U. S. Court of Ap-

peals). Ball asserted that success down to the

penny as to all matters in issue or which could

have been placed in issue in the state proceed-

ing established beyond reach of argument that -

he had performed in a “good faith adversary

manner’’ in the state proceeding as required.

The U. S. District Court did not agree. By its

order of November 19, 1976, it first acknowl

edged that under its order of June 5, 1970,

Ball could have reinstated his Section 1983

action, if Ball had complied with the stipula-

tion therein that he perform in a ‘“‘good faith

adversary manner’. The U. S. District Court

then concluded, however, that Ball had not

complied with the stipulation and denied sein-

statement. The express basis for the finding

of the U. S. District Court that Ball had not

complied with the stipulation of June 5, 1970

was that he had ‘‘deliberately withheld [from

the State Court] his claim for reinstatement

to the position he occupied before he was dis-

missed. . .’’ (Appendix B, pages A-13, A-14).

Ball’s appeal to the U. S. Court of Appeals was based on

dual assertions: (1) that in the posture of a statutory appeal

from order of the Texas State Board of Education (as the

state administrative appeal was at a! times - from its filing

on February 19,1970 until its final conclusion in June of

1976) the Texas Courts lacked jurisdictional power to en-

tertain any such claim as the U. S. District Court on Novem-

ber 19, 1976 determined Ball to have ‘‘deliberately with-

held’’; and (2) that even if Ball had devised some method of

causing the State courts to come to decision on such a claim,

it only could have been based on assertion that the constitu-

tional issues he had reserved under England from the state

proceeding somehow overrode State Laws, which he would

then have had to alleged to have been in conflict (they were

not). For overview here of what required 23 pages of Ball’s

brief to the U. S. Court of Appeals, I take (2), above, first.

Axiomatic is that, while England v. Louisiana State Board

of Medical Examiners, 375 U. S. 411 (1964) provides a

method by which a litigant in state court may preserve feder-

al claims for later determination by a federal court (by re-

serving such claims from the scope of the state proceeding,

should the litigant so desire, this Court did not in England,

intimate that the power to choose not remain entirely with

the litigant. This choice afforded by England did not afford

a litigant two bites at the apple, as does, for example, the

habeas corpus exhaustion requirement, 29 U. S.C. A. Section

2254. Ball’s only protection under England was his power to

choose. Even assuming it to have been jurisdictionally pos-

sible in the state administrative proceeding to have placed

his federal claim for reinstatement to his teaching position in

litigation, Ball could only have done so by election to litigate

such federal claims fully in the state proceeding. Such elec-

tion would, however, constitute a bar rather than a condition

to subsequent litigation of such federal issues in federal

court. In the introductory paragraph to Brown v. Chastain,

416 F 2d 1012 (1969), the U.'S. Court of Appeals for the

Fifth Circuit explained:

‘* We are here presented with the question whether

the District Court had jurisdiction to directly re-

view a *final determination of federal constitu-

tional questions voluntarily submitted to and

decided by the state courts of Florida in connec-

tion with litigation pending in the state courts, no

review by the U. S. Supreme Court having been

sought. *The District Court had no jurisdiction

and we reverse."’

(416 F 2d at 1013)

*emphasis supplied

a eee ey

Turning now to (1), above, even had Rall so elected to

present his federal claims in the state proceeding, the state

courts in this statutory appeal from an administrative order

would have lacked jurisdictional power to have entertained

them. Only in circumstances where the administrative order,

itself creates right to relief in the teacher which could other-

wise be lost, may counterclaim for relief under ordinary rules

of evidence be considered in an administrative appeal under

Section 13.115(c) Vernon’s Annotated Texas Education

Code. Board of Trustees of Crystal City Independent School

District v. Briggs, 486 S. W. 2d 829 (Tex. Civ. App. - Beau-

mont, 1972, no writ).

That the administrative order, itself, did not create a right

to reinstatement to his teaching position in Ball, an untenur-

ed teacher discharged at the commencement of his one-year

teaching contract for the 1969-70 school year, after the ex-

piration date of his teaching contract is clear. Ball’s first

appeal to the U. S. Court of Appeals and his first application

to this Court for review by certiorari were based, in part,

upon recognition of this jurisdictional limitation and plea

that the last class for the 1969-70 school year was already

over on June 5, 1970, when the U. S. District Court entered

its order from which all subsequent events have emanated.

To, as quickly as possible, present overview of why the

Texas State Board of Education lacked jurisdictional power

to accomplish the feat attributed to it by the U. S. District

Court, let it first be recognized that the Texas Constitution

(Art. VII, Section 1) placed mandatory duty on the Texas

Legislature to establish and maintain system of public free

schools. While the State Board of Education is a constitu-

tional body, its duties and authority are prescribed by the

Legislature. Article VII, Section 7, Texas Constitution. In

summary, powers and duties of all component bodies of sys-

tem of free public education in Texas exist by virtue of

statute or not at all. Moseley v. Dallas, 17 S. W. 2d 36 (Tex.

Comm. Apps - 1929) at 40; Marrs v. Mathews, 270 S. W. 586

(Tex. Civ. App. - Texarkana, 1925) err. ref. .

Under the Texas Education Code, control of education at

the state level is vested in the Central Education Agency,

which consists of the State Board of Education, the State

Commissioner of Education and the State Department of

Education. Sections 11.01, 11.02(a) Texas. Education Code.

At the local level the management and control of schools is

responsibility of local school district like the Kerrville Inde-

pendent School District. Section 11.01 Texas Education

Code. The local school districts have exclusive power to

hire and dismiss teachers. Sections 23.26(b) and 23.28(a)

(b) Texas Education Code.

Ball’s teaching contract for the 1969-70 school year is for

one-year only. In accordance with Article 2781, Texas

Civil Statutes, the predecessor to Section 23.28 of the Texas

Education Code, it commenced July 1, 1969, and terminated

June 30, 1970. The Kerrville Independent School District

has not adopted provisions of the probationary or continu-

ing contract law as set out in Sections 21. 201 et seq of the

Texas Education Code, which choice is vested in discretion of

local school board. Opin.; Texas Attorney General 1967,

No. M-123; Sec. 23.28(e) Texas Education Code. Thus Mr.

Ball was without shelter under Texas Law in form of tenure.

Even the local boards of trustees, in whom exclusive power

to contract with teachers is vested, and who may elect to

adopt optional statutory tenure plan, in absence of such elec-

tion may not contract with teachers beyond the three year

maximum term of contracts provided in Section 23.28 of

the Texas Education Code. Fikes v. Sharp, 112 S. W. 2d 774

(Tex. Civ. App. - Austin, 1938, no writ history); Fromen v.

Goose Creek Independent School District, 148 S. W. 2d 460

(Tex. Civ. App. -Galveston,1941, err. dism.); Hix v. Tuloso-

Midway Independent School District, 489 S. W. 706 (Tex.

Civ. App. -1972, err. ref. n.r.e.). Thus, while academic in

view of the contract of one-year’s duration actually entered

into between Ball and respondents, it is interesting to note

that even respondents, in whom the exclusive power to con-

tract is vested, lacked power in the summer of 1969 to have

entered into any contractual arrangement with Ball past

June of 1972. Again, this is academic because of one-year

agreement actually entered into, but any such purported

agreement would have been void. I turn now to the State

Board of Education.

The State Board of Education is a part of the executive

branch of State Government. Even, when, as in Mr. Ball’s

case, it acts in a ‘‘quasi-judicial’’ role, it ' serving in function

as a part of the executive branch of government. Whitmarsh

v. Buckley, 324 S. W. 2d 298, (Tex. Civ. App. - Houston,

1959) at 303. It’s jurisdictional power, even when function-

ing quasi-judicially, is limited to correcting abuse of discre-

tion that could be legally exercised by lower school officials.

Dallas v. Moseley, 286 S. W. 497 (Tex. Civ. App. -Dallas,

1926) affirmed 17 S. W. 2d 36.

The classic statement of the jurisdictional powers and limi-

tations of the State Board of Education when acting in a

situation like Mr. Ball’s is found in Chief Justice Alexander’s

opinion, in Gragg v. Hill, 58 S. W. 2d 150 (Tex. Civ. App. -

Waco, 1933, err. ref.), as follows:

. . . The controversy between the training school

and appellant arose over the manner in which ap-

pellant was performing his duties as a teacher.

*There was no dispute about his having been em-

ployed nor as to the terms of his contract. . .

(Consequently he was discharged. *The question

which was before the State Board of Education

was one of fact and not of law, relating to the in-

ternal affairs of the school and the efficient man-

agement thereof, and came within the purview of

the matters committed by the legislature to such

board for its determination and was therefore with-

in the jurisdiction of such board. Harkness v.

Hutcherson, 90 Tex. 383, 38 S. W. 1120; Brazoria

Independent School District v. Weems, (Tex. Civ.

App.) 295 S. W. 268, Paragraph 3; McCollum v.

Adams, Tex. Civ. App.) 110 S. W. 526.

(58 S. W. 2d at 152)

*emphasis supplied

So the jurisdictional power of the State Board of Education

is limited to questions of fact within the context of deciding

whether or not there has been an abuse of discretion by low-

er school officials. See also: Blair v. Board of Trustees,

Trinity Independent School District, 161 S. W. 2d 1030

(Tex. Civ. App. -Galveston, 1942) at 1034; Underwood v.

Sabinal Independent School District 275 W. 267 (Tex. Civ.

App. -San Antonio, 1925) at 267.

It follows that the reversal of the lower school officials

by the State Board of Education in Mr. Ball’s case is subject

to but one possible construction - to reinstate Mr. Ball’s

Pannen A ee Siac ta he

Pw ee a re Radotes De

Sal oS es Mile En a loi EY ae

teaching contract and to again vest in Mir. Ball the identical

rights under his teaching contract which had been taken away

from him when his contract had been terminated on Sep-

‘tember 3, 1969. Even if such restored rights, however, in-

cluded the right to teach as well as the right to be paid classes

were over on June 5, 1970, when the U. S. District Court en-

tered its order from which all this has evolved.

Respectfully submitted, then, is that the determination of

the U. S. District Court in its order of November 19, 1976

that the effect of the order [of January 5, 1970] of the State

Board of Education would have been to reinstate petitioner

to the teaching position he occupied before he was dismissed

at a time after the completion of the contract period was

based upon a clear misconception or misapplication of local

law. Bookwalter v. Phelps, 325 F 2 186 (8th Cir. 1963);

American National Bank of St. Poul v. National Indemnity

Company of Omaha, 22 F. 2d 513 (7th Cir. 1955). Axio-

matic is that such cannot stand as basis for denial of federal

jurisdiction.

Unforeseen by Mr. Ball on January 5, 1970, of course, was

the reasoning this Court would later in Kelley v. Johnson,

425 U. S. 708 (1976). Should his Section 1983 action be

remanded to U. S. District Court as he seeks, and should it

be determined that, under applicable state law, the voice of

the State of Texas with reference to his van-dyke beard be

that of the State Board of Education (as was Suffolk County

the voice of the State of New York in Kelley), rather than of

respondents, additional benefit from the State Board’s deci-

sion, unsuspicioned on January 5, 1970, could accrue.

7. That disposition of this case by, in effect, summary

judgment on the merits granted by the U. S. Court of Ap-

peals on its own motion cannot be sanctioned on this record.

Prior to grant of certiorari by this Court in Perry v. Sinder-

mann, 408 U. S. 593 (1972), summary judgment for failure

to state a cause of action had been granted by the U. S. Dis-

trict Court, but reversed by the Court of Appeals, which had

ordered remand to the trial court.

The background of Gene Ball’s case, then, stands in sharp

contrast to Sindermann. As noted earlier, a hearing was had

in U. S. District Court, March 20, 1970, on petitioner’s appli-

cation for temporary injunction. By definition, the full-day’s

testimony then received in the trial court by witnesses called

by petitioner and by respondents did relate to the sustantive

merits of petitioner's federal allegations. And it was at the

end of this day with this testimony fresh on its mind that, as

noted earlier, the trial court made the only comments it was

ever to make pertaining to the substantive merits of Gene

Ball’s federal allegations. On page 33 of the appendix to

briefs in the Court of Appeals, the trial court observed:

‘““*Now if this had happened about the time the

school year began, I don’t think I would have been

hesitant in granting a temporary injunction on the

state of the record as it is now, but what I am con-

cerned about is the fact that we are toward the end

of the school year.”

*emphasis supplied

And on page 36 is found the following statement of the trial

court:

dinner ialiai animate ease hale

PA. mans Knitted Sgt etnias,

BA OR ile ne tatty ts AOU aE ers nso nS

anette etree ds es ik 4c nett ae

“*] think he has raised a serious constitutional

issue in this case, a very serious issue, and I certain-

ly do not want to do anything to deprive him of

the right to litigate it in this court if he feels that at

some time he has not had full opportunity to do so

in the state court. *but / do not think that in the

meantime that I should interfere with the processes

that are now in motion in the state court”.

*emphasis supplied

After conclusion of this hearing at the end of the day, March

20, 1970, there has been no further activity relating to the

substantive merit of Gene Ball’s Section 1983 federal action,

Revealed in every subsequent order issued by the trial court

is that the substantive merit or lack of it of Gene Ball’s

federal allegations formed no basis for any order issued by

the U. S. District Court, right down to and including the

order of final dismissal issued November 19,1976.

Grant of certiorari here for purpose of summary remand to

the trial court for development of the facts would aot be

expansive of this Court’s assumption in Kelley v. Johnson,

supra, that the, '. .citizenry at large has some sort of ‘liber-

ty’ interest within the Fourteenth Amendment in matters of

personnal appearance . . .”’ (425 U.S. at 244). cf. Damico v.

California, 389 U. S. 416 (1967); Sweetbriar Institute v.

Button, 387 U. S. 423 (1968); and recent summary remand

of seventh circuit decision for application of Mt. Healthy

School District v. Doyle, supa. burden of proof. Rather, it

would be remaining in line with this court’s earlier recogni-

tion in England v. Louisiana State Board of Medical Examin-

ers, 375 U.S. 411 (1964), that:

“How the facts are found will often dictate the

decision of federal claims.”’; and, ‘‘It is the typical,

not the rare, case in which constitutional claims

turn upon resolution of contested factual issues.”

(375 U. S. at 416, 417). Moreover, presented here

could be the case where the very existence of a

substantial federal question must depend upon

just where in the broad spectrum of the “general

contours” of the Fourteenth Amendment the

facts are determined to fall. But this determina-

tion, and now coming full circle, is one reserved, at

least initially, to the trial court.

(3)

Two teachers were admittedly then teaching

with mustaches although students were for-

bidden all facial hair. Such, even if deemed

the withholding of a privilege rather than a

right, is violative of the Equal Protection of

the Laws Guarantee;

While petitioner was, two weeks after his con-

tract was terminated in his absence, afforded

a “hearing” to “‘reconsider’’, respondents sub-

sequent action in ‘‘reaffirming’’ its earlier

termination of Mr. Ball’s contract found no

possible basis of support in matters presented

at the hearing. Common Law of the Institu-

tion in the Kerrville Independent School

District at times applicable was that if a teach-

er’s contract was not to be renewed, the

Turning back now to the mechanics, applicable rules all

auger in Mr. Ball’s behalf. Petitioner’s factual allegations -

which at this stage of the litigation must.be construed most

favorably to him (Sinderman, 408 U. S. at 599) are that:

(1) Respondents discharged petitioner during his

contract term solely for his refusal to shave

his van-dyke style beard without justification

or prior adverse experience in violation of

petitioner’s substantive rights to liberty and

equal protection of the laws and in violation

of his federally protected right to procedural

due process, all as guaranteed by the Four-

teenth Amendment;,

(2) The express reason given by respondents for

such arbitrary action was that if petitioner

were permitted to teach while wearing a

beard it would make it more difficult to en-

force a rule that students be clean shaven.

Set reins AED. ets

teacher would be so notified, reasons furnish-

ed, and the teacher afforded opportunity to

reply before decision not to renew became

final. Ball’s teaching contract for the 1969-70

school year was reinstated by the Texas Board

of Education on January 5, 1970, and was in

full force and effect at time of contract re-

newal in Spring of 1970. Ball's discharge and

failure of respondent’s to follow their own

procedure with regard to subsequent renewal

contracts are violative of Ball’s right guarante-

ed by the Procedural Due Process Clause of

the Fourteenth Amendment. Moreover, Ball’s

standing in the community prior to termina-

tion of his contract on September 3, 1969 is

exemplified by his having been: chairman of

(4)

(5)

Mathematics Department at- Tivy High

School; Adult sponsor for the Young Republi-

cans of Kerr County; and an honorary kiwani-

an, by virtue of his community service with

young people. The termination of his con-

tract on September 3, 1969 severely damaged

his reputation and standing in the community

for years thereafter. Respondents hung on

him a “badge of infamy" within the meaning

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

(1972). Special damages resulting from the

violation of procedural due process are alleg-

ed;

Respondent’s refusal to renew Ball’s teaching

contract for the 1970-71 and subsequent

school years was in retaliation for Ball’s exer-

cise of protected freedoms indicated in (1),

(2) and (3) above; and

Petitioner is entitled to reinstatement, back

pay, and damages, both actual and exemplary,

alleged to have resulted specially from res-

pondent’s alleged violations of Ball's federally

protected rights, and over and above back

pay, and costs, including reasonable attor-

ney’s fees.

“' In this case, of course, the respondent has yet to

show that the decision not to renew his contract

was, in fact, made in retaliation for his exercise of

the constitutional right of free speech *The Dis-

trict Court foreclosed any opportunity to make

this showing when it granted summary judgment.

Hence, we *cannot now hold that the action of

Board of Regents was invalid.

‘* But we agree with the Court of Appeals that

*there is a genuine dispute as to ‘whether the

college refused to renew the teaching contract on

an impermissible basis - as a reprisal for the exer-

cise of constitutionally protected rights.’ 430 F 2d

at 943. The respondent has alleged that his non re-

tention was based on his testimony before legisla-

tive committees and his other public statements

critical of the Regent's policies. And he has alleged

~ that this public criticism was within the First and

Fourteenth Amendments’ protections of freedom

of speech. “*Plainly these allegations present a

boni-fide constitutional claim. For this Court has

held that a teacher’s public criticism of his super-

iors on matters of public concern *may be consti-

tutionally protected and may, therefore, be an im-

permissible basis for termination of his employ-

ment. Pickering v. Board of Education, supra.

Unless, therefore, and as a matter of law it can be said that

on any state of facts it can be said that petitioner is entitled

to NONE of the relief mentioned above, then, this case is

like Perry v. Sindermann, supra, where this Court affirmed:

“ For *this reason we hold that the grant of sum-

mary judgment against the respondent, *WITH-

OUT FULL EXPLORATION OF THIS ISSUE was

improper.”

(408 U. S. at 598)

*emphasis supplied

CONCLUSION

For these reasons a writ of certiorari should issue to review

the judgment of the United States Court of Appeals for the

Fifth Circuit rendered in this case.

Respectfully submitted,

he M- ga ~-

J: JOE MIKE EGAN, JR.

254 First National Bank Building

Kerrville, Texas 78028

Attorney for Petitioner

PROOF OF SERVICE

In furtherance of the rules, I certify that I have served

three copies of the above petition for writ of certiorari upon

MR. LAVERN D. HARRIS, Realty and Trust Building, Kerr-

ville, Texas, sole counsel for all respondents.

wpe

This 2nd day of February, 1979.

JOE MIKE EGAN, “UR.

A-1

APPENDIX A

Opinion of United States Court of Appeals

Gene BALL, Plaintiff-Appellant,

BOARD OF TRUSTEES OF the KERRVILLE

INDEPENDENT SCHOOL DISTRICT et al.,

Defendants-Appellees

No. 76-4456

United States Court of Appeals, Fifth Circuit

Nov. 20, 1978

Untenured high school teacher who was discharged for re-

fusal to shave his beard filed a complaint under the Civil

Rights Act of 1871. The United States District Court for the

Western District of Texas, at San Antonio, Adrian A. Spears,

J., dismissed the complaint, and plaintiff appealed. The

Court of Appeals held that plaintiff failed to raise a substan-

tial federal question and his suit was thus properly dismissed,

since, having no right to reemployment, he had no due pro-

cess right to a hearing as to the reasons for his lismissal,

and since the claim that the school board’s action denied him

a “liberty interest” was wholly insubstantial and frivolous.

Affirmed.

Godbold, Circuit Judge, filed a specially concurring opin-

ion.

A-2

!. Federal Courts 244

Untenured high school teacher, who was discharged for

refusal to shave his beard and who filed suit under the Civil

Rights Act of 1871, failed to raise a substantial federal ques-

tion and his suit was thus properly dismissed, since, having

no right to reemployment, he had no due process right to a

hearing as to the reasons for his dismissal, and since the

claim that school board’s action denied him a “liberty in-

terest’’ was wholly insubstantial and frivolous. 42 U.S.C.A.

§ 1983; U.S.C.A. Const. Amend. 14.

2. Schools and School Districts 133.15

Reemployment of untenured high school teacher, who was

employed under a one-year contract, could be refused for

any reason or for no reason at all.

3. Constitutional Law 255(2)

A due process claim for violation of a “liberty interest”

entitling plaintiff, an untenured high school teacher who was

discharged for refusal to shave his beard, to a full hearing

would arise if, and only if, the reason given or the dismissal

procedure resulted in a ‘‘badge of infamy,” public scorn, or

the like. U.S.C.A. Const. Amend. 14.

4. Constitutional Law 255(2)

As regards a due process claim for violation of a “liberty

interest,’’ it is clear that choosing to wear a beard rather than

be clean shaven, or disapproval of either choice, has no effect

on a man’s profession or his ability to earn a livelihood. U.S.

C.A. Const. Amend. 14.

A-3

Appeal from the United States District Court for the

Western District of Texas.

Before GODBOLD, SIMPSON, and MORGAN, Circuit

Judges.

PER CURIAM:

This appeal represents one of various stages of litigation in

which the appellant Ball has sought judicial relief from his

disemployment at the hands of the Board of Trustees of the

Kerrville Independent School District. The discrete question

on appeal is whether the district court erred in dismissing the

appellant’s suit for reinstatement. Although relying

upon a different methodology, we affirm the judgment of

the lower court.

Because an exhaustive recital of procedural and legal his-

tory of this case would be exhausting, only those that are

pertinent will be forced on the reader. Appellant had taught

at the Tivy High School in Kerrville, Texas for six years con-

tinuouily prior to the 1969-1970 school year. His one year

contract for the 1969-1970 school year was terminated, how-

ever, on September 3, 1969 for his refusal to shave a Van

Dyke beard. Appellant pursued his administrative remedies

to the State Board of Education before whom he was success-

ful. The Kerrville Independent School District elected to

continue the administrative procedure by appealing the deci-

sion of the State Board to the District Court of Kerr County.

Immediately upon notice of the district appeal, appellant

filed a §1983 action against appellees claiming that appellees

abridged appellant’s fourteenth amendment right of liberty

and equal protection. As relief, appellant sought both money

damages under the contract and reinstatement. The district

A-4

court, taking notice of the pending state action, dismissed,

directing appellant to seek his relief in the state proceeding

in a good faith adversary manner. The dismissal was express-

ly made without prejudice and the appellant was invited to

reinstate whatever federal claim remained after the state pro-

ceedings. This court affirmed the dismissal and the Supreme

Court refused to grant certiorari. Ball v. Board of Trustees,

Kerrville Ind. School District, 442 F.2d 408 (5th Cir.), cert.

denied, 404 U.S. 865, 92 S.Ct. 58, 30 L.Ed.2d 108 (1971).

Appellant returned to the state machinery and was ultimate-

ly successful in receiving his money damages. He did not

ever press his claim for reinstatement, however. Because of

this failure, the district court determined that appellant did

not litigate his claim in good faith in state court and declined

to reinstate federal jurisdiction by dismissing appellant's re-

newed §1983 complaint. Appellant then timely appealed

the dismissal to this court.

[1,2] The district court dismissed this suit based upon the

appellant’s failure to submit his entire claim to state deter-

mination. In sustaining this dismissal, we find that the ap-

pellant failed to raise a substantial federal question. The em-

ployment of Ball, an untenured high school teacher employ-

ed under a one-year contract at Tivy High School was ter-

minated by the Trustees of the Kerrville Independent School

District. The assigned reason was his refusal to shave his Van

Dyke beard. Of course, reamployment could be refused, for

any reason, or for no reason at all. Having no right to re-

employment he had no due process right to a hearing as to

the reasons for dismissal. Board of Regents of State Colleges

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

(1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

33 L.Ed. 2d 570 (1972).

A-5

[3] A due process claim for violation of a “‘liberty inter-

est’ entitling Ball to a full hearing would arise if -- and only

if - the reason given or the dismissal procedure adopted re-

sulted in a ‘‘badge of infamy,”’ public scorn, or the like. Paul

v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405

(1976); Dennis v. § eS Consolidated School District, 577 F.

2d 338, 340-341 (5th Cir. 1978); Kaprelian v. Texas Wo-

man’s University, 509 F.2d 133, 139 (5th Cir. 1975).

[4] But public knowledge that Ball’s refusal to shave his

beard clearly bore no such taint. It is clear beyond cavil that

choosing to wear a beard rather than be clean shaven -- or

disapproval of either choice -- has no effect on a man’s pro-

fession or his ability to earn a livelihood. State administra-

tive procedures resulted in Ball’s being paid his salary in full

for the term of his employment. No other or further redress

at the hands of the Board of Trustees or its individual mem-

bers may be had under 42 U.S.C. § 1983, or under any ac-

cepted concept of federal constitutional rights. Ball urgently

insists on appeal that his federal claim should not have been

dismissed below without an opportunity for full hearing.

Assuming arguendo the academic correctness of this pro-

position, the claim of violation of a liberty interest by the

Board’s action is ‘‘wholly insubstantial and frivolous.’’ Fed-

eral courts do not sit to entertain such claims.

“‘Lack of substantiality in a federal question may appear

either because it is obviously without merit or because its

unsoundness so clearly results from previous decisions of

[the Supreme Court] as to foreclose the subject.’’ Mays v.

Kirk, 414 F.2d 131, 135 (5th Cir. 1969), quoting from

California Water Service Co. v. City of Redding, 304 U.S.

252, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938).

This two-pronged test is fully met here.’ The district court

AFFIRMED.

GODBOLD, Circuit Judge, specially concurring:

I agree that the district court did not commit reversible

error in refusing to reinstate Ball’s federal cause of action,

but my reasons are different from that stated by the majori-

ty.

My colleagues approach this as just another “hair case’

and hold that Ball has raised no substantial federal question,

that is, no cause of action. This is a ground different from

that of the trial court and it was not urged by appellees on

this appeal and neither briefed nor argued.'! The majority

1. For a recent application of the ‘wholly unsubstantial and frivolous”

doctrine as warranting dismissal, see Southpark Square Limited, etc. v.

City of Jackson, Mississippi, 565 F.2d 338, 341-42 (5th Cir. 1978).

1, Additionally, in Ball’s earlier appeal this court initially gave the same

ground (though in different words: “Ball has not demonstrated that he

has any Federally protected right which has been violated’) as the

basis for affirming vhe district court’s order in which it had abstained

pending Ball’s pursuit of state court remedies. Ba// v. Bd. of Trustees

of Kerrville Indep. School Dist., 434 F.2d 1040 (C.A.5, 1970). Then,

on petition for rehearing, the court withdrew that opinion and substitu-

ed a Rule 21 affirmance. Ball.v. Bd. of Trustees of Kerrville Indep.

Schoo! Dist., 442 F.2d 408 (C.A.5), cert. denied, 404 U.S. 865, 92 S.

Ct. 58, 30 L.Ed. 2d 108 (1971). The court’s withdrawal of its initial

opinion was neither res judicata nor law of the case. But, to sav the

least, it is unfortunate judicial administration to recede from the stated

ground of decision that plaintiff has no cause of action, decide the

case under the unrevealing cloak of Rule 21, and then years later, in a

second appeal and after plaintiff has attempted repeatedly and unsuc-

cessfuily to get his claim heard in federal court, disinter the ground pre-

viously withdrawn and notify the plaintiff that all along he never had a

federal cause of action at all.

A-7

decide the due process issue but do not purport to address or

reach the equal protection claim which they acknowledge

Ball asserted.

This court has decided that ‘‘hair regulation’’ cases brought

by high schooi students do not rise to constitutional dimen-

sion. Karr v. Schmidt, 460 F.2d 609 (C.A.5) (en banc),

cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256

(1972). In Lansadle v. Tyler Junior College, 470 F.2d 659

(C.A.5, 1972) (en banc), cert. denied, 411 U.S. 986, 93 S.Ct.

2268, 36 L.Ed.2d 964 (1973), we reached the opposite con-

clusion for college students. In Hander v. San Jacinto Junior

College, 519 F.2d 273 (C.A.5, 1975), opin. aff'd on petit.

for reh., 522 F.2d 204 (C.A.5, 1975), we applied Lansdale to

a college-level teacher. So far as I can determine this court

has never ruled on whether a teacher at the high school level

may have an equal protection claim of constitutional dimen-

sion arising from discrimination against him based upon his

having a beard or upon the length of his hair. Since the

above cases from this circuit were decided the Supreme Court

in Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.

2d 708 (1976), upheld the dismissal of the claim of a police-

man attacking on Fourteenth Amendment grounds a police

department regulation controlling hair length, mustaches,

beards and wigs. The county government did not prevail,

however, on the ground that the policeman’s claim was not

of constitutional dimension but rather upon the ground that

there was a rational relationship between the regulation and

promotion of safety of persons and property through the

means of a police department.”

2. In reaching this determination the Court considered factors bearing

upon the government’s right to make choices concerning organization,

dress and equipment of policemen, such as the desire to make police-

men readily recognizable to the public through their uniformity of ap-

Ball would be entitled to his day in court on the equal pro-

tection claim unless there is some barrier. The order of the

district court, denying Ball’s motion to reinstate his federal

case on the ground that he had not litigated in the state pro-

ceedings in a good faith adversary manner, is not a barrier: 2

But there is another barrier. Ball’s claims have been vindicat-

ed in state court to the extent they are not patently illusory.

He had a one-year contract for the 1969-70 school year, and

no tenure. On this apveal he only urges a right to reinstate-

ment because his contract was terminated for a reason not

constitutionally acceptable. 4 On the second state appeal the

Court of Civil Appeals granted Ball his full salary for the

1969-70 school year, with interest.5 One can speculate that if

(Footnote 2 - continued)

pearance, and the desire for esprit de corps which such similarity might

inculcate in the officers. It hardly seems possible that such considera-

tions apply to a high school teacher, but in any event this would be an

issue for a trial court to address and decide.

3. As he was entitled to do where the federal court had invoked Pu//-

man abstention (Railroad Commission of Texas v. Pullman Co., 312

U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)), pursuant to England v.

Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct.

461, 11 L.Ed.2d 440 (1964), Ball reserved this federal issues for later

determination in federal court. Stripped to its essentials, the approach

of the federal district court effectively overrode England under the

rubric of requiring Ball to litigate in state court in a good faith adver-

sary manner. Abstention, a neutral concept of standing aside while the

state acts, was Converted into an affirmative requirement of exhausting

state remedies as a prerequisite to federal jurisdiction.

4. But it is plain that if the district court declared he has such a right,

Ball would claim back pay for the period from the 1970-71 school

year to the date of judgment (less earnings elsewhere).

5. Ball v. Kerrville Indep. School Dist., 529 S.W.2d 792 at 795 (Tex.

Civ.App. 1975, error ref’d, n.r.e.).

A-9

Ball had been reinstated immediately upon filing his federal

suit, then when contract renewal time came in March 1970

the school board might have renewed his contract for the

1970-71 school year, and then in March 1971 for another

year, and so on until the present. On the facts of this case,

the theory blinks at reality. In January 1970 the State Board

entered its order, overturning the purported termination of

Ball’s contract. Thereafter Ball informed the school board

that he desired to resume teaching. In January and Febru-

ary 1970 the school board considered Ball’s case at its meet-

ings but took no action on either back pay or reinstatement.

On February 17, it appealed the State Board’s order to the

state trial court. At contract renewal time in 1970, and for

six years thereafter, the school board and Ball were locked in

mortal combat over whether he had been validly discharged.

Under these circumstances the state court’s judgment for

salary for the 1969-70 school year was full vindication for

such rights as were not illusory. The federal district court

was not required to crank up the federal judicial machinery

to enter a declaratory order that Ball was entitled to rein-

statement in 1970 but not entitled to relief because he has

been paid by a state court judgment for the full period that,

in all good sense, his reinstated status would have lasted.

A-10

Order Overruling Motion for Rehearing

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Edward W. Wadsworth Tel. 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

Office of the Clerk

December 20, 1978

TO ALL PARTIES LISTED BELOW:

NO. 76-4456 - GENE BALL v. BOARD OF TRUSTEES

OF THE KERRVILLE INDEPENDENT

SCHOOL DISTRICT, ET AL.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition ( ) for rehearing, and no member of the

panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the petition ‘ ) for rehearing en banc has

also been denied.

See Rule 41, Federal Rules of Appellate Procedure for issu-

ance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By: s/ Sally Hayward

Deputy Clerk

cc: Mr. Joe Mike Egan, Jr.

Mr. Lavern D. Harris

A-11

Judgment of Circuit Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-4456

D. C. Docket No. SA-70-CA-88

GENE BALL,

. Plaintiff-Appellant,

versus

BOARD OF TRUSTEES OF THE KERRVILLE INDEPEN-

DENT SCHOOL DISTRICT, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Texas

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Western

District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby,

affirmed;

A-12

It is further ordered that the plaintiff-appellant pay to

defendants-appellees the costs on appeal, to be taxed by the

Clerk of this Court.

November 20, 1978

Godbold, Circuit Judge, specially concurring.

Issued As Mandate:

— v0 tha taba enh ee ee ae Deunes ~~

A-13

APPENDIX B

Order Denying Petition for Reinstatement and for Leave

To File a Third Amended Complaint

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GENE BALL

v. CIVIL ACTION NO. SA 70 CA 88

BOARD OF TRUSTEES OF THE

KERRVILLE INDEPENDENT SCHOOL

DISTRICT, ET AL.

ORDER DENYING PETITION FOR REINSTATEMENT

AND FOR LEAVE TO FILE A TIIRD AMENDED

COMPLAINT

On this the 19th day of November, 1976, came on for

consideration Plaintiff's petition for reinstatement of this

cause to active status on the docket of this Court and for

leave to file a third amended complaint; and it appearing to

the court that Plaintiff initially chose to pursue his claim

in the State System; that on the 5th day of June, 1970, this

Court dismissed this cause without prejudice to Plaintiff's

right to petition for reinstatement after completion of the

administrative proceedings pending in the State Court in a

good faith adversary manner;' and it further appearing that

in the State Court Plaintiff deliberately withheld his claim for

reinstatement to the position he occupied before he was dis-

A-14

missed (the remedy he seeks in this Court) despite the fact

that under Texas law the effect of the order of the State

Board of Education would have been to afford him that re-

lief,? thus fully demonstrating his failure to complete the

administrative proceedings in a good faith adversary manner

as required; it is, therefore,

ORDERED that Plaintiff's said Petition for reinstatement

of this cause to active status on the docket of this Court and

for leave to file a third amended complaint be and the same

is hereby DENIED.

Entered this the 19th day of November, 1976.

s/ Adrian A. Spears

ADRIAN A. SPEARS

UNITED STATES DISTRICT

JUDGE

1. This order was affirmed in an opinion of the Court of Appeals dated

December 17, 1970. However, that opinion was withdrawn on May 4,

1971, at which time the judgment of this Court was again affirmed.

2. AARKNESSv. HUTCHERSON, 90 Tex. 383, 38 S. W. 1120, (1897):

RAMOS v. GUERRA, 311 S. W. 2d 869 (Tex. Civ. Aop. - San Antonio

1953, no writ); GRAGG v. HILL, 58 S. W. 2d 150 (Tex. Civ. App. -

Waco 1933, writ ref’d); BRAZORIA INDEPENDENT SCHOOL DiS-

TRICT v. WEEMS, 295 S. W. 268 (Tex. Civ. App. - Galveston 1927, no

writ). IN at least one case, it is apparent that the individual was rein-

stated after the completion of the contract period. UNDERWOOD v.

SABINAL INDEPENDENT SCHOOL DISTRICT, 275 S. W. 267

(Tex. Civ. App. - San Antonio 1925, no writ).

A-15

APPENDIX C

Order Denying Temporary Injunction

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GENE BALL

v. CIVIL ACTION

BOARD OF TRUSTEES OF THE SA 70 CA 88

KERRVILLE INDEPENDENT SCHOOL

DISTRICT, ET AL.

ORDER DENYING TEMPORARY INJUNCTION

On the 20th day of March, 1970, came on for considera-

tion the Plaintiff’s motion for temporary injunction; and the

Court having fully considered the pleadings, the evidence, the

briefs and the arguments of counsel, is of the opinion that

the motion for temporary injunction should be and the same

is hereby DENIED.

It is further ordered that a hearing on the merits herein

will be set immediately after the completion of the adminis-

trative proceedings now pending in the Second 38th District

Court of Kerr County, Texas.

Entered this 23rd day of March, 1970.

s/ Adrian A. Spears

ADRIAN A. SPEARS

UNITED STATES DISTRICT

JUDGE

A-16

Order to Show Cause

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GENE BALL

BOARD OF TRUSTEES OF THE

KERRVILLE INDEPENDENT SCHOOL

DISTRICT, HENRY H. WIED CIVIL ACTION

MARGARET WATSON, DAN W. BACON, NO. SA 70 CA 88

MAURICE HAUFLER, EARL A.

COCHRANE, PAT BRADEN AND

C. H. BORCHERS, MEMBERS OF

THE BOARD OF TRUSTEES, INDI-

VIDUALLY AND IN THEIR OFFICIAL

CAPACITIES |

ORDER TO SHOW CAUSE

On this the 13th day of May 1970, it appearing that on

March 23, 1970 this Court denied Plaintiff’s motion for tem-

porary injunction and ordered *that a hearing on the merits

herein will be set immediately after the completion of the

administrative proceedings now pending in the Second 38th

District Court of Kerr County, Texas’’; and

It further appearing that on May 1, 1970 Plaintiff filed

his ‘‘First Amended Complaint’’, accompanied by his “Sixth

Brief’, to which was attached a copy of a “Second Amended

A-17

Answer” filed by Plaintiff as Appellee in Cause No. 6405, in

said Second 38th District Court of Kerr County, Texas, in

which Second Amended Answer Plaintiff seeks to withdraw

his peas in abatement and/or motions to dismiss number one

and two, andinvites the State Court to dispose of the pending

litigation adversely to him; and

It further appearing that the course being pursued by

Plaintiff in the State Court is contrary to the spirit, if not the

letter, of this Court’s order of March 23, 1970, which con-

templated a good faith attempt on Plaintiff's part to com-

plete the proceedings in the State Court in an adversary man-

ner; and

It further appearing that in and by the order of March 23,

1970 this Court acknowledged its intention to hold a hearing

on the merits of this cause in order to consider any federal

claims remaining after completion of the administrative pro-

ceedings in the State Court; and

It further appearing that the Supreme Court of the United

States, in ENGLAND v. LOUISIANA STATE BOARD OF

MEDICAL EXAMINERS, 375 U.S. 411 (1964), recognized

that a party may retain his right to pursue his federal claims

in Federal Court by the simple expedient of informing the

State Court “that he intends, should the State Courts hold

against him on the question of state law, to return to the Dis-

trict Court for disposition of his federal contention”; and

It further appearing that proper court administration, and

the preservation of the delicate balance between the State

and Federal Courts, demand that the lawsuit now pending in

the Second 38th District Court of Kerr County, Texas, be

completed as a good faith adversary proceeding; it is, there-

fore,

A-18

ORDERED that not later than Wednesday, May 20, 1970,

the Plaintiff shall show cause in writing,with a copy to oppos-

ing counsel, why, in the event he either fails or refuses to

contest the cause pending in the State Court in a good faith

effort to win it, this cause should not be dismissed for failure

and/or refusal to exhaust the administrative remedies avail-

able to him in State Court, in a faithful and effective manner.

Within five (5) days thereafter, defendants are directed to

reply thereto in writing, with a copy to opposing counsel.

Entered this 13th day of May 1970.

s/ Adrian A. Spears

ADRIAN A. SPEARS

UNITED STATES DISTRICT JUDGE

A-19

Order of Dismissal

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GENE BALL

BOARD OF TRUSTEES OF

KERRVILLE INDEPENDENT SCHOOL

DISTRICT, ET AL.

ORDER OF DISMISSAL

On this the 5th day of June, 1970, came on to be consider-

ed the Court’s order entered herein on May 13, 1970, requir-

ing Plaintiff to show cause in writing why, in the event he

either fails or refuses to contest the cause pending in the

State Court in good faith effort to exhaust the administrative

remedies available to him in State Court, in a faithful and ef-

fective manner. Having considered said order, together with

the responses and briefs by the parties herein, along with

Plaintiff’s representation of his intention not to exhaust

said administrative remedies, this Court is of the opinion that

Plairtiff has failed to show cause why this case should not be

dismissed. It is, therefore,

ORDERED, ADJUDGED and DECREED that this cause

is and it is hereby dismissed, without prejudice, however, to

Plaintiff's right to petition the Court for reinstatement of

this cause for the purpose of this cause for the purpose of

A-20

considering any federal claims remaining after completion of

the administrative proceedings pending in the State Court;

provided such administrative proceedings are completed by

Plaintiff in a good faith adversary manner.

: SO ORDERED this 5th day of June, 1970 at San Antonio

exas.

s/ Adrian A. Spears

ADRIAN A. SPEARS

UNITED STATES DISTRICT JUDGE

P :

ee eT ey Sey

A-21

Per Curiam

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 30063

GENE BALL,

Plaintiff-Appellant

versus

BOARD OF TRUSTEES OF KERRVILLE

INDEPENDENT SCHOOL DISTRICT, ET AL.,

Defendants-Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

(December 17, 1970)

Before JONES, GEWIN and CLARK, Circuit Judges.

PER CURIAM: The Appellant, Gene Ball, has not demon-

strated that he has any Federally protected right which has

been violated. The judgment of the district court is AF-

FIRMED.

A-22

Petition for Rehearing and Petition for Rehearing

En Banc

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 30063

GENE BALL,

Plaintiff-Appellant

versus

BOARD OF TRUSTEES OF KERRVILLE

INDEPENDENT SCHOOL DISTRICT, ET AL.,

Defendants-Appellees

(May 4, 1971)

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

Before JONES, GEWIN and CLARK

CIRCUIT JUDGES

PER CURIAM: The opinion originally issued in this case

is hereby withdrawn and the following opinion is substitu-

ted therefore:

Judgment AFFIRMED. See Local Rule 21.’

The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of

1. See: NLRB v. AMALGAMATED CLOTHING WORKERS OF AMER-

ICA, 430 F 2d 966 (5th 1970).

A-23

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 12) the Petition for Rehearing En Banc is also DENIED.

A-24

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

Washington, D. C. 20543

October 12, 1971

E. Robert Seaver

Clerk of the Court

Joe Mike Egan, Jr., Esq.

401 Junction Highway

Kerrville, Texas 78028

Re: GENE BALL v. BD. OF TRUSTEES OF

KERRVILLE INDEPENDENT SCHOOL

DISTRICT, ET AL., No. 70-199.

Dear Sir:

The Court today denied the petition for a writ of certiorari

in the above-entitled case. Mr. Justice Douglas is of the opin-

ion that certiorari should be granted.

Very truly yours,

E. Robert Seaver, Clerk

. By

/s/

Assistant Cl

Lavern D. Harris, Esq. oe

Realty and Trust Bldg.

Kerrville, Texas 78028

AIRMIAL

A-25

Order

FILED

Feb. 18, 1972

Dan W. Benedict, Clerk

by. s/ Frances Mosley

Deputy

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GENE BALL

v. CIVIL ACTION

BOARD OF TRUSTEE OF NO. SA 70 CA 88

KERRVILLE ISD

ORDER

On this the 18th day of February, 1972, came on to be

considered Plaintiff’s motio: for leave to file information to

the Court and petition for re-instatement of this cause to

inactive status, and it appearing that the provisions of this

Court’s order of June 5, 1970, requiring that administrative

proceedings pending in the state court be completed by

plaintiff in a good faith adversary manner, have not been

satisfied, it is ORDERED that the motion to file said infor-

mation and petition for re-instatement be, and the same is

hereby, in all things, DENIED, without prejudice, however,

to plaintiff’s right to petition the Court for re-instatement

of this cause for the purpose of considering any federal

A-26

claims remaining after completion of the administrative pro-

ceedings pending in the state Court; provided such adminis-

trative proceedings are completed by plaintiff in a good faith

adversary manner.

Dated this 18th day of February, 1972.

s/ Adrian A. Spears

United States District Judge

A-27

Order Denying Motions for Leave to File Petition for

Reinstatement and Second Amended Complaint

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

GENE BALL

V. CIVIL ACTION

BOARD OF TRUSTEES OF THE

KERRVILLE INDEPENDENT SCHOOL

DISTRICT, ET AL.

NO. SA 70 CA 88

ORDER DENYING MOTIONS FOR LEAVE TO FILE

PETITION FOR REINSTATEMENT AND SECOND

AMENDED COMPLAINT

On this the 23rd day of February, 1972, came on for con-

sideration Plaintiff's motions for leave to file petition for re-

instatement and second amended complaint, and it appear-

ing that the provisions of this Court’s order of June 5, 1970,

requiring that administrative proceedings pending in the

State Court be completed by Plaintiff in a good faith adver-

sary manner, still have not been satisfied, since it is clear that

Plaintiff has not exhausted his rights of appeal from the order

of the State District Court, dated February 18, 1972. See

Tex. Ed. Code Ann. # 21,215(d). In this connection, Plain-

tiff’s attention is called to the opinion of Mr. Justice Black

in KARR v. SCHMIDT, 401 U. S. 1201 (Feb. 11, 1971),

in which he said, in part:

“The only thing about it that borders on the serious to

me is the idea that anyone should think the Federal Con-

stitution imposes on the United States Courts the burden

A-28

of supervising the length of hair that public school stu-

dents should wear. The records of the federal courts, in-

cluding ours, “how a heavy burden of litigation in connec-

tion with cases of great importance - the kind of litigation

our courts must be able to handle if they are to perform

their responsibility to our society. Moreover, our Consti-

tution has sought to distribute the powers of government

in this Nation between the United States and the States.

Surely the federal judiciary can perform no greater service

to the Nation than to leave the States unhampered in the

performance of their purely local affairs. Surely few poli-

cies can be thought of in which States are more capable of

deciding than the length of the hair of school boys. There

can, of course, be honest differences of opinion as to

whether any government, state or federal, should as a

matter of public policy regulate the length of haircuts, but

it would be difficult to prove by reason, logic, or common

sense that the federal judiciary is more competent to deal

with hair length than are the local school authorities and

state legislatures of all our 50 states. Perhaps if the courts

will leave the States free to perform their own constitu-

tional duties they will at least be able successfully to regu-

late the length of hair their public school students can

wear.”

In view of the foregoing, it is ORDERED that Piaintiff’s

lh Don tt lta

A-29

APPENDIX D

Plaintiff's Third Amended Complaint

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

. SAN ANTONIO DIVISION

GENE BALL,

Plaintiff

- SA 70 CA 88

BOARD OF TRUSTEES OF THE KERRVILLE

INDEPENDENT SCHOOL DISTRICT, HENRY

H. WIED, MARGARET WATSON, DAN W.

BACON, MAURICE HAUFLER AND EARL A.

COCHRANE AND PAT BRADEN AND

C. H. BORCHERS, MEMBERS OF THE

BOARD OF TRUSTEES, INDIVIDUALLY

AND IN THEIR OFFICIAL CAPACITIES,

Defendants

Submitted for filing May 21, 1976

Leave to file - Denied

November 19, 1976

said motions be and the same are hereby DENIED.

PLAINTIFF’S THIRD AMENDED COMPLAINT

Entered this 23rd day of February, 1972 at San Antonio,

Texas. This is an action in equity and at law to redress the depri-

: vation under color of the laws of the State of Texas of rights,

oy Raton A. Spans privileges and immunities secured by the First and Fourteen-

ADRIAN A. SPEARS th Amendments to the United States Constitution. Juris-

UNITED STATES DISTRICT

JUDGE

A-30

diction of this Court is invoked pursuant to 28 U.S.C. 1331

and 28 U.S.C., 1343 (3) and (4) as authorized by 42 U.S.C.,

1983 and of 28 U.S.C., 2201 and 2202. This is an action

for declaratory judgment and an injunction to prevent

the further deprivation under color of the State Law, statu-

te, ordinance, regulation, custom or usage of rights, privileges

and immunities secured by the Constitution of the United

States, as made applicable to the States by the Fourteenth

Amendment, guaranteeing to all persons freedom of speech,

liberty, due process of law, and equal protection of the laws.

Plaintiff seeks re-instatement to his teaching position, back

pay, damages (both actual and exemplary), reasonable

attorneys fees and his costs. At issue in this action is the

right of the Plaintiff to wear a Van Dyke style beard (under

facts and circumstances here material) according to his tastes

and desires, but to be trimmed neatly and cared for in such

manner as to constitute no possible hazard to health, while

performing his teaching duties at the Tivy High School in

Kerrville, Texas.

PLAINTIFF

2. Plaintiff GENE BALL is a citizen of the United States

and resides in Cody, Wyoming.

DEFENDANTS

3. The Board of Trustees, the governing body of the Kerr-

ville Independent School District, has power to manage and

govern the schools in the district pursuant to Article 2780,

V.A.C.S. In matters merely incidental to routine manage-

ment and control of internal affairs of School, such as pre-

sented by Van Dyke beards on teachers, the Texas Legis-

A-31

lature has adopted policy by keeping such matters in the

hands of those knowledgeable in school matters. This

social policy is implemented by vesting initial power of de-

cision in such matters in local board of Trustees (Defen-

dants) with final review and decision vested in Texas State

Board of Education in such routine school matters and

very limited power vested in Courts of General Jurisdiction

to overturn decisions made by the Texes State Board of

Education in School matters. Hence, while defendants

necessarily act under color of State Law, the interests of the

State are necessarily declared by the Texas State Board of

Education in a school matter within their jurisdiction, such

as here, upon which they have passed judgment.

4. Henry H. Wied, Margaret Watson, Dan W. Bacon, Pat

Braden, Earl A. Cochrane, Maurice Haufler and C. H. Bor-

chers were members of the Board of Trustees at times materi-

al to this complaint. All reside in Kerr County, Texas.

5. Each Defendant is sued in his or her official and in-

dividual capacities.

STATEMENT OF FACTS

6. Plaintiff, prior to the 1969-70 school year, had taught

mathematics at the Tivy High School in Kerrville, Texas. He

was awarded a contract to teach in the same assignment dur-

ing 1969-70. He was chairman of the Mathematics Depart-

ment at Tivy High School at the time of his suspension.

7. On the morning of Friday, August 29, 1969, he report-

ed for duty wearing a Van Dyke style beard. He that morn-

ing attended the orientation and building faculty meetings,

A-32

after which he was notified by the high school principal to

report to the superintendent.

8. The superintendent directed Plaintiff to shave his beard

before reporting to teach the following Tuesday. Plaintiff

declined, and was advised by the superintendent that he

was suspended until he did so.

9. On the first day of classes (Tuesday, September 2,

1969) Plaintiff presented himself to teach, wearing his Van

Dyke beard. He was advised that he was still under suspen-

sion. By letter dated that day he was officially notified in

effect that:

(1) He was suspended;

(2) It would be recommended to the Board of

Trustees that his contract be terminated, unless

he shaved his beard.

(5) That Plaintiff could appeal the Superintendent’s

action to the Board of Trustees.

10. A special meeting of the Defendant Board was called

on September 3, 1969, to consider the termination of Plain-

tiff’s contract. Plaintiff was invited to attend. Plaintiff of-

fered to come and answer any questions if he could have

assurance that his attendance at the meeting on such short

notice would not constitute complete fulfillment of the

Superintendent’s promise of an appeal to the Board and for-

feiture of his rights to later hearing, after he had time to pre-

pare. Receiving no such assurance, Plaintiff did not attend.

The Board voted (6 - 0) at such meeting to terminate Plain-

A-33

tiff’s contract. Plaintiff retained counsel the next morning,

September 4, 1969.

11. Plaintiff requested and was granted opportunity for a

hearing before the Defendant Board for the purpose of re-

considering the termination of his contract. Such meeting,

attended by Plaintiff with counsel, was held as an open

forum, on September 15, 1969. No decision was made at

that time, but the Board announced they would take the

matter under advisement. In closed session meeting, held

September 23, 1969, they affirmed (7 - 0) their earlier ac-

tion in terminating Plaintiff's contract, but approved pay-

ment of salary to Plaintiff, for the month of September only.

Based upon matters presented to Defendants September 15,

1969, of which a written transcript was made and preserved,

Defendants decision of September 23, 1969 was wholly

arbitrary and without rational basis in the evidence heard and

preserved.

12. Plaintiff promptly filed appeal to the Commissioner of

Education for the State of Texas, Dr. J.W. Edgar. Hearing

was held by the Commissioner on November 19, 1969. By

decision rendered December 11, 1969, the Commissioner

found the Board of Trustees to have been justified in ter-

minating Plaintiff’s contract.

13. Plaintiff appealed the action of the Commissioner to

the State Board of Trustees. After a hearing of the appeal,

held before the State Board on January 5, 1970, the State

Board of Trustees overruled the decision of the Commis-

sioner. As indicated in paragraph 3, while Defendants are

acting under color of state law, it was as a matter of law on

January 5, 1970 that the interest and aims of the State were

A-34

declared.

14. Defendant Board indicated that it would take no

action with respect to the finding of the State Board of Edu-

cation that the termination of Plaintiff’s contract had been

wrongful, until their regular scheduled meeting, January 15,

1970. Plaintiff did not attend this meeting but had offered

to attend at the pleasure of the Board. At the January 15th

meeting Defendant Board again deferred taking action, in-

dicating that they needed further clarification as to (1) what

the State Board had done and (2) what the Plaintiff was

seeking.

15. Defendant Board refused to again consider Plaintiff’s

situation until its next regularly scheduled meeting over a

month later on February 17, 1970. Plaintiff attended this

meeting. Counsel were present for both Plaintiff and Defen-

dants. From the inception of the difficulty and consistently

to this point (as well as after and until the present date)

Plaintiff has indicated to Defendants that re-instatement to

his teaching position was the single aspect of the controversy

not amenable to dilution. At the inception of the difficulty

denial of his right to perform as a teacher was the only as-

pect of the controversy. On the fourth day (from memory)

after Plaintiff retained counsel, and prior to the open hearing

held September 15, 1969, copies of full decisions rendered in

each case cited in Plaintiff's First Brief were delivered to

counsel for Defendant. These same authorities had been

placed before this Court in Plaintiff's First Brief prior to

hearing had March 20, 1970, at which the Court commented

from the bench:

ee 7

~ eee a

A-35

“Now if this had happened about the time the

School year began, I don’t think I would have

been hesitatnt in granting a temporary injunction

on the state of the record as it is now, but what I

am concerned about is the fact that we are toward

the end of the school year.”’

(S. F. - 169)

Further, Defendants were made aware practically from the

very outset in September, 1969, that if judicial action be

came unavoidable such action would be initiated by Plaintiff

in the Federal Court. Even as late as the February 17, 1970

meeting, Plaintiff was re-iterating to Defendants his extreme

reluctance to institute judicial action. At the conclusion of

the February 17, 1970 meeting, however, Defendants again

indicated that they would defer decision - the reason given

was absence of one Defendant and fact that another left

prior to conclusion, leaving only 5 present. On the morning

of February 19, 1970 Plaintiff indicated to Defendant that

he would commence preparation of paperwork necessary to

institute federal suit. Before noon on that same morning

Defendants had filed the Appeal from the order of the State

Board of Education, which as finally concluded in Plaintiff's

favor only this spring of 1976. The State Court Appeal was

instituted with a nine page petition with seven additional

pages of Exhibits attached, indicative of agility and lack of

formality with which Defendants would and could then act

if so inclined. While possibly conjecture that timing of De-

fendants action motiviated to delay pursuit of re-instatement

by Plaintiff in Federal Court, it is certain that Plaintiff then

proceeded to file in this Court with utmost speed possible.

Eight days later on February 27, 1970 this suit was institu-

ted, and the rest to date this Court can judicially notice. The

A-36

single thread of purpose running unbent through the diffi-

culty is that re-instatement is its single aspect not amendable

to dilution and that judicial resolution thereof had, necessari-

ly, to await return to this Court. The dollars involved (as

exemplified in earlier pleadings) have assumed their present

importance only with passage of time and more recently. In

all matters material Defendants’ activities have been of un-

reasoning, obdurate and obstinate character.

16. On March 12, 1976, by failing to file motion for re-

hearing in the Supreme Court of Texas the Kerrville Indepen-

dent School District foreclosed possibility of further appell-

ate effort in the State Administrative proceeding and further

activities of any kind bearing on this controversy other than

in this court. No proceeding is now pending in any other

Court with regard to the merits of this controversy. Two

purely routine clerical matters remain in the Texas Court of

Civil Appeals and they may be history on May 21, 1976.

17. No rule or understanding, oral or written, existed in

the Kerrville Independent School District which proscribed

beards on teachers, although the following rule did pertain

to students:

‘Boys to be properly dressed for school must

wear belts, have their hair cut frequently, and (be)

cleanshaven if at the age of shaving.”

To the present date, no formal rule or regulation proscrib-

ing beards on teachers has been promulgated by the Board of

Trustees. Moreover, Mr. Ball was not fired for violation of

any ‘rule’. Each of Defendants testified in October, 1974

that he or she was more concerned about Plaintiff's ‘‘insub-

A-37

ordination” and ‘‘refusal to co-operate’ with the Superinten-

dent than with his physical appearance.

18. Three teachers at the Tivy High School wore mus-

taches at times material to this complaint. Another teacher

has taught while wearing a beard on two separate occasions

during the recent past without repercussion or distraction on

either occasion. Plaintiff, however, was not permitted to

commence teaching his first class while wearing his beard on

September 2, 1969, and has not been allowed to teach there-

after.

19. Reason advanced by the Defendant Board as to why

Plaintiff is not to be allowed to teach while wearing his beard

is expressed concern that were he to do so it would become

more difficult to enforce the rule that students be clean-

shaven.

20. Plaintiff has expressed his desire to the school authori-

ties that his contract be renewed for the 1970-71 year. In

fact this l

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.