# Petition — Ball v. Board of Trustees of the Kerrville Independent School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2439%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 972 ## 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 ii 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 iv 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 © oe TT OS ee . v 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 vi 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, yD PAGE 63 62 34, 41 31,49 45 47 r 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 65 55, 58, 65 14, 41 37 61 61 32, 61, 62 16 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 f Jones v. Hopper, 410 F. 24 1323 (10th Cir. POOR 5 5 ea ete py sine 15 / , 4 - BBE. REINS RT: ee Ot oo yee ix 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 , r xi 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 47 32,61 49 13 v: 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. 2 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. 5 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 6 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. Se > = POR SP RS 7 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 1: ‘‘. ,. . 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). 9 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- 10 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 11 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- 12 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) 13 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) 14 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); eR 15 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, 16 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 ee et hal Pr “CDOT FE RI 17 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 18 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. 19 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 4 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 21 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. 22 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 23 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 24 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 25 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; 26 (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- 27 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. 28 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 29 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. 30 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 31 (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 32 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 33 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 35 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: 36 (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, 37 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) 38 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 39 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 40 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. 41 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 42 (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. 43 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 44 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. 45 238 (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- 46 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- 47 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 48 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 49 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 30 (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- Sl 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) 92 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) 53 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) 54 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- 55 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) 56 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. 57 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. 58 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 59 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 60 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- Le 61 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: 62 . . . 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 63 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 64 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 65 “*] 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: 66 “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) 67 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. ie 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) 68 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. 69 “' 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 70 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, v. 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 unsoundne [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2439%3A1. Public record. Not legal advice.