Opposition — Markot v. Hausner

PATRICIA MARKOT, and HAWTHORNE TEACHERS

ASSOCIATION, a New Jersey Corporation,

Petitioners,

ROBERT N. HAUSNER, Principal of the Hawthorne

High School HAWTHORNE BOARD OF EDUCA-

TION, JOHN B. INGEMI, former Superintendent of

the Hawthorne School District and JOSEPH LIVA-

TINO, Vice Principal of the Hawthorne High School,

Counter-Statement of Questions Presented

1. Does a board of education act within constitutional

parameters when it denies the accrual of tenure to an

English teacher based on a factual determination that

for entire class periods during a two and three day time

span her entire teaching performance comprised no other

activity except a physical presence in class during which

time both she as a teacher and her pupils as students

of English were solely involved in reading to themselves

which the Board of Education concluded in the exercise

of its broad discretion constituted an abdication of any

bona fide teaching effort or at the very least an unim-

pressive teaching performance undeserving of a tenured

appointment; or, is it conceivable that such a determina-

tion to deny tenure under such circumstances is a vio-

lation of academic freedom, freedom of speech or any

possible constitutional right of the individual so involved.

2. Is the insistence of the petitioner as a nontenured

employee that the activity described as “silent reading”

is a viable educational methodology render the assess-

ment of the board of education to deny tenure a vio-

lation of petitioner’s substantive due process rights under

the Fourteenth Amendment to the United States Con-

stitution.

TABLE OF CONTENTS

CounTER-STATEMENT OF QUESTIONS PRESENTED ............

Orintons BeLow

JURISDICTION

CounTER-STATEMENT OF THE CASE

Reasons ror Denyine THE Writ—It is reasonable for

a Board of Education to conclude that where an

English teacher literally abandons the substantive

teaching of English for entire class periods on

numerous occasions, during which hiatus both stu-

dents and the teacher are involved in no other

activity except reading to themselves, such con-

duct is tantamount to converting an English class

into a supervised study, a dismal pedagogie per-

formance and most assuredly ample justification

for a Board of Education in the exercise of its

broad discretion to deny the granting of tenure.

Under such circumstances, the assertion that a writ

of certiorari be granted by this Court by virtue

of an unlawful intrusion into the individual teach-

er’s academic freedom, freedom of speech, due

process or any constitutional right is without a

semblance of merit

There exists no sharp conflict among the United

States Circuit Courts involving recognition of a

Federal cause of action based upon the right of

academic freedom under the First and Fourteenth

Amendments of the Constitution as it relates to

utilizing a particular reasonable teaching method-

ology which requires resolution by the Supreme

Court of the United States

Conclusion

PAGE

So we = we

17

TABLE OF CONTENTS iii

——

PAGE

Cases Cited

Ahern v. Board of Education of School District of

Grand Island, 456 F.2d 399 (7th Cir. 1972) ...... 15

Aumiller v. University of Delaware, 434 F.Supp. 1273

(D.Del. 1977) 23

Clark v. Holmes, 474 F.2d 928 (1972) 10, 13

East Hartford Education Association v. Board of |

Education, 562 F.2d 838 (1977) 18, 20

Eckerd v. Indian River School District, 475 F.Supp.

1350 (D. Del. 1979) 23

Epperson v. Arkansas, 393 U.S. 97, 21 L.Ed.2d 228,

89 S.Ct. 266 (1968) 19, 21

Gilbertson v. McAllister, 403 F.Supp. 1 (1975) ............ 8

Healy v. James, 408 U.S. 169 (1972) 14

Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973) cert.

den., 414 U.S. 1075 14, 15, 21

Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969) ....... 15

Mt. Healthy Board of Education v. Doyle, 429 U.S.

274 (1977) 16

Parducci v. Rutland, 316 F.Supp. 352 (M.D. Ala.

1970) 15

Pickering v. Board of Education, 391 U.S. 563, 88

S.Ct. 1731, 20 L.Ed.2d 811 (1968) 13

Sterzing v. Fort Bend Independent School District,

376 F.Supp. 657 (S.D. Texas 1972), remanded on

other grounds, 496 F.2d 92 (5th Cir. 1974) -............... 15, 17

Wilson v. Chancellor, 418 F.Supp. 1358 (D. Ore.

1976) 17

iv TABLE OF CONTENTS

PAGE

Wood v. Strickland, 420 U.S. 308, 43 L.Ed.2d 214,

95 S.Ct. 992 (1975) . 19

Zeller v. Donegal School District Bd. of Education,

Oat Fae (1S) 2 eae 21, 23

United States Constitution Cited

First Amendment 2, 4, 8, 11, 15, 17, 21, 23

Fourteenth Amendment i, 2, 4, 17

Statutes Cited

28 US.C.:

See. 1254(1) 2

See. 1343 2

See. 2201 2

See. 2202 2

42 US.C.:

Bee, AGB scceescrctinsnctsesasnscsssinsinissansneteemernenssncssqnenbesecesies 2,7, 10

See. 1988 2

Rule Cited

F.R.C.P. 41(b) 5

NO. 81-26

In THE

- Supreme Court of the United States

Octroser Term 1981

—_~<

——-.

PATRICIA MARKOT, and HAWTHORNE TEACHERS

ASSOCIATION, a New Jersey Corporation,

Petitioners,

vs.

ROBERT N. HAUSNER, Principal of the Hawthorne

High School HAWTHORNE BOARD .OF EDUCA-

TION, JOHN B. INGEMI, former Superintendent of

the Hawthorne School District and JOSEPH LIVA-

TINO, Vice Principal of the Hawthorne High School,

Respondents.

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Opinions Below

The decision of the United States District Court for

the District of New Jersey is unreported. The opinion

of the District Court is reproduced in petitioners’ Ap-

pendix (A, 3-13).

The decision of the United States Court of Appeals

for the Third Circuit entered on April 16, 1981, by way

of judgment order is without opinion. (Docket No. 80-

2504, Third Circuit, April 16, 1981). The judgment order

of the Third Circuit is reproduced in petitioners’ Ap-

pendix (A. 1-2).

Jurisdiction

Petitioners seek a review on writ of certiorari and

this Court’s jurisdiction, pursuant to 28 U.S.C. §1254(1),

which provides:

“cases in the courts of appeals may be reviewed

by the Supreme Court...

(1) By writ of certiorari granted upon a petition

of any party to any civil or criminal case, before

or after rendition of judgment or decree .. .”

Jurisdiction before the United States District Court for

the parties in the subject matter of the litigation was

pursuant to the provisions of 28 U.S.C. §§1343, 2201 and

2202; and 42 U.S.C. §§1983 and 1988; and the First and

the Fourteenth Amendments to the United States Con-

stitution.

Counter-Statement of the Case

Respondent, Hawthorne Board of Education, declined

to grant tenure to petitioner Markot, a non-tenured teach-

ing staff member at Hawthorne High School. Respond-

ent Board of Education exercised a sixty-day notice of

termination provision that is provided in the contract of

each non-tenured teaching staff member employed in the

school district. The respondent Board exercised its dis-

3

cretion in denying a tenure appointment to petitioner pur-

suant to the recommendation of its entire administrative

staff on the basis of their assessment of petitioner’s teach-

ing performance.

The principal of the high school, respondent Hausner,

subsequent to observing the petitioner Markot conduct-

ing an English I class for two consecutive days dur-

ing which the students did nothing but read a novel in

class to themselves while the teacher read the same as-

signed novel in class to herself, deemed this to be less

than an adequate performance for the teaching of fresh-

man English. This procedure and methodology described

by the petitioner as “silent reading” is contended by the

petitioner to be an educational procedure or methodology

that petitioner Markot possesses a constitutional right to

use in class to whatever extent petitioner desires.

This procedure implemented by petitioner for the en-

tire period of a first-year English class for three con-

secutive days, in addition to deficiencies in her daily plan

book, were the reasons expressed by the three respond-

ent school administrators—principal, vice principal and

superintendent of schools—who unanimously urged the de-

nial of a tenure appointment to the petitioner.

The New Jersey Commissioner of Education denied an

appeal by the petitioner Markot, concluding that the re-

spondent Board of Education properly exercised discre-

tion in not granting tenure to petitioner. The New Jer-

sey State Board of Education affirmed the decision of

the Commissioner indicating that the Board of Education

and the Course of Study did not approve the procedure

or methodology of “silent reading” as asserted by the

petitioner Markot. Petitioner Markot, before this Court

and in the trial Court, somewhat obscures the fact that

petitioner was a nontenured employee whose services were

terminated prior to achieving tenure.

4

Petitioner Markot asserts a violation of the First and

Fourteenth Amendments to the United States Constitu-

tion in that her termination prior to her obtaining tenure,

or the denial of tenure to her, based on the assessment

and recommendations of the entire administrative staff

of the Hawthorne Board of Education, is an impermissible

intrusion of her freedom of speech and her academic

freedom.

In the early part of 1979, the respondent, Hawthorne

Board of Education, employed a new principal in the Haw-

thorne High School. The principal, on February 5, 1979,

entered the classroom of the petitioner Markot at the be-

ginning of the period and observed her purportedly teach-

ing an English I class, remaining in the classroom for

half the class period from 11:15 A.M. until 11:35 A.M.

During the twenty minutes of observation, petitioner Mar-

kot sat at the desk reading the book “To Kill a Mocking-

bird”, and the entire class likewise engaged in what peti-

tioner Markot described as “silent reading” of the same

novel. During the entire time that the principal observed

the class there was no communication between the peti-

tioner Markot and the class, nor were there any worksheets

or notebooks on the students’ desks.

The principal indicated to the petitioner Markot that

what he observed on the 5th day of February, 1979, was

not indicative of actual classroom teaching and that there

was no purpose to his remaining for what was in his view

a study period. The principal stated to petitioner Markot

on February 5, 1979, that he would return in the future

to observe evidence of an actual teaching performance.

The very next day, February 6, 1979, believing it essen-

tial to observe the petitioner Markot in the midst of actual

teaching such as a literature discussion, the principal, Dr.

Hausner, entered the classroom halfway through the pe-

5

riod, at 11:30 A.M., and the students were once more si-

lently reading the novel, “To Kill A Mockingbird”. Peti-

tioner Markot did not even notice the presence of the prin-

cipal in the classroom. At the termination of the entire

class period, the petitioner Markot finally looked up, no-

ticed the principal seated in the rear of the room, walked

toward him and stated that if he, the principal, desired

to see a literature lesson he should return in two days or

visit one of her other English classes.

The petitioner Markot stated that on February 5, 6 and

7, 1979, her English class for the entire period was en-

gaged in silent reading only and that no other activity

involving students took place for three consecutive days.

Petitioner Markot requested a closed hearing with the

respondent Hawthorne Board of Education which was

held on February 20, 1979, extensive testimony being ten-

dered, and subsequent to deliberation the respondent Haw-

thorne Board of Education enacted a resolution terminat-

ing her employment and denying tenure, based on the

recommendation of the entire administrative staff of the

Hawthorne High School.

An expert witness testified that a procedure of “silent

reading” with many other nuances, is viewed by some edu-

cational authorities as a meaningful educational tool. The

same expert conceded that other educational sources re-

gard such silent reading as a wasteful use of precious class

time, involving an activity that youngsters should be pur-

suing in study halls, in the library or at home.

The trial Court, pursuant to Federal Rule of Civil Pro-

cedure 41(b), granted an involuntary dismissal to all re-

spondents on motion, setting forth detailed findings of

fact and conclusions of law, appearing in petitioners’ Ap-

pendix (A. 3-13).

6

REASONS FOR DENYING THE WRIT

It is reasonable for a Board of Education to conclude

that where an English teacher literally abandons the

substantive teaching of English for entire class periods

on numerous occasions, during which hiatus both

students and the teacher are involved in no other

activity except reading to themselves, such conduct is

tantamount to converting an English class into a super-

vised study, a dismal pedagogic performance and most

assuredly ample justification for a Board of Education

in the exercise of its broad discretion to deny the grant-

ing of tenure. Under such circumstances, the assertion

that a writ of certiorari be granted by this Court by

virtue of an unlawful intrusion into the individual teach-

er’s academic freedom, freedom of speech, due process

or any constitutional right is without a semblance of

merit.

Respondent, Board of Education, pursuant to the recom-

mendation of its administrative staff, the principal of the

high school, vice principal of the high school and the

superintendent of schools, exercised its discretion to deny

a tenure appointment to the petitioner, Markot. It is un-

disputed that the administrators’ recommendations and

the Board’s action indicated disillusionment and dissatisfac-

tion with the petitioner’s extensive use of what is described

by petitioner Markot as “silent reading” in the freshman

English I Literature class and the manner in which she

maintained her lesson plan book.

This petitioner asserts that she possesses a constitutional

right to insist that entire English Literature periods for

freshmen shall involve nothing other than students read-

ing to themselves while she, as the teacher, reads to her-

self and if the Board of Education, in the exercise of its

7

discretion, acknowledges the recommendation of its: admin-

istrators and determines this to be an unimpressive teach-

ing performance and denies her the accrual of tenure, such

action by the Board of Education and the school adminis-

trators is intrusion into her constitutional right of free

speech and academic freedom. While §1983 has been a

fertile arena for exotic claims, the statute was never in-

tended to foster the absurd. The claim proffered by peti-

tioners clearly falls in that category.

The individual respondents and the respondent, Haw-

thorne Board of Education, contend that this claim is in

fact a trivialization of treasured constitutional liberties.

In reality, it is a ruse; and frankly, a blatant attempt to

provide a cloak of constitutional protection to pedagogic

indolence in the guise of the First Amendment,

It is noteworthy to consider the innumerable deleterious

ramifications of petitioners’ contentions. For example, if

a board of education employs a French teacher and pursu-

ant to the recommendation of a high school principal denies

her tenure appointment, stating as a reason that school

administrators deemed her pattern of only using cassettes

to teach French with virtually no attempt to converse her-

self in French with the class, such a subjective assessment

would represent an unlawful intrusion of academic free-

dom and freedom of speech and be impermissible. Like-

wise, a determination by a board not to grant tenure to

a science teacher who, in the judgment of school admin-

istrators and pursuant to their recommendation concluded

that a teacher utilized films to an excessive degree neg-

lecting active laboratory experiments or failed to foster

lively class discussions, which the board determined to be

less than desirable or an uninspiring teaching performance

would be forbidden as an invidious intrusion of free speech

and academic freedom. By the same token, a history

8

teacher might contend and insist through a constitutional

shield that her history class will do nothing except read

newspapers silently for unlimited portions of a term, The

argument of petitioners is not merely unacceptable but

strikingly meritless. Such a determination would preclude

school administrators and the Board from rendering any

value judgments and totally vitiate the discretionary right

of a board of education to grant or deny tenure.

It is quite persuasive to consider and recognize what

this case does not involve. It is not remotely similar in

form or substance to the factual circumstances revealed

in the line of decisions that set forth the parameters of

First Amendment protection accorded to students, teach-

ers, school personnel and public employees in general.

While it is an appropriate generalization that in virtually

every Federal Court decision pertaining to First Amend-

ment rights vis-a-vis teacher comments, whether in the

classroom or out of the classroom, the crucial issue invari-

ably involves balancing the interest of the State as an em-

ployer against the right of free expression by the public

employee. Very frequently, there arises the typical set-

ting of bitter public comments by a teacher against a board

of education and the necessity for determining whether

subsequent action taken by a board of education is or is

not in the nature of forbidden retaliation against the pro-

tected right of free expression by a teacher as to matters

of general public concern. Gilbertson v. McAllister, 403

F.Supp. 1 (1975). Also somewhat frequently there are

charges of a school district acting in the impermissible

censure role exceeding either by direct or indirect means

to impede the discussion or exchange of controversial sub-

ject matters by teachers and students in the classroom or

elsewhere. None of these are remotely involved in the

instant matter. There is not the slightest suggestion that

the Board of Education or the individual respondents acted

9

in retaliation for what the petitioner Markot expressed in

public or private pertaining to a criticism of school board

operations, or to the content of class discussion, or what

was expressed by the petitioner in the classroom pertaining

to an opinion, or in the discussion of a controversial sub-

ject matter. Quite to the contrary, there is the undisputed

absence of, any subtle or hidden motivations. There is no

hint of seeking to achievé by indirection that which the

Board may not accomplish directly. The content of what

this petitioner as a teacher desired to “think, state or ex-

press in or out of the clasroom” is just not at issue.

It is undisputed that the respondent, Robert N. Hausner,

a new principal, arrived on February 1, 1979, with no

knowledge even as to the existence of petitioner. The new

principal embarked on his statutorily mandated task of

observing and evaluating non-tenured personnel which in-

cluded the petitioner. With no predisposition as to any

members of the staff, how could Dr. Hausner, having never

known the petitioner, at least until the time of his first ob-

servation, be anything but impartial. His visit to peti-

tioner Markot’s class on February 5, 1979, in anticipation

of observing the teaching of an English I Literature course

resulted in Dr, Hausner observing at least in his assess-

ment an English teacher supervising a study period but

not teaching her subject matter. Instead of an active Eng-

lish Literature teaching experience, students were doing

nothing other than reading to themselves while the teacher

read to herself, which activity continued into the next day

(in fact, admitted by the petitioner to be the sole activity

for three consecutive days). This led to Dr. Hausner’s

assessment and judgment that at the very least this was

neither desirable or a satisfactory teaching performance

by the petitioner. This coupled with petitioner’s indica-

tion that this extensive silent reading activity had been

pursued because there had been a “shortage of books”,

10

which statement at best was deliberately misleading, and

at worst a patent falsehood, together with the further as-

sertion that silent reading was utilized because there was

a wide discrepancy in the reading abilities of the students,

which was also completely inaccurate, indicates beyond

question that freedom of expression or academic freedom

is a subject matter that is not involved in this case in any

shape or form. It is a bogus issue and no tortured manipu-

lation of the facts can infuse vitality into this specious

assertion.

Surely, it is an appropriate and reasonable determina-

tion by a high school principal to observe an English

teacher and render both an objective and subjective analy-

sis as to her style, her presentation of a subject matter

to a class, and her ability to inspire student interest,

which must be acknowledged as legitimate factors that a

principal as an evaluator may appropriately utilize in

determining whether tenure should be recommended, In

fact, this is and was Dr. Hausner’s duty. It is also ap-

parent that no matter what variations of the facts are

considered in the instant matter, that is, whether silent

reading was utilized for one-half of the period, for the

whole period, for a substantial part of the period, or what-

ever modified version, it is an intellectual mockery to

suggest that a board of education commits a constitutional

intrusion when it concludes, pursuant to the recommenda-

tion of its administrative staff, that such silent reading

reflects an inadequate teaching performance.

In Clark v. Holmes, 474 F.2d 928 (1972), a non-tenured

teacher was denied a tenure appointment and in filing a

§1983 action concluded that administrators and the uni-

versity penalized him from exercising his right to free-

dom of speech. The factual setting indicated that plain-

tiff Clark had counseled an excessive number of students

11

instead of referring them to the university’s professional

counselors, overemphasized sex in his health survey course,

counseled students with his office door closed and belittled

other staff members in discussions with students. The

Court made the following observation as to his claim of

First Amendment intrusion, stating:

“First, Clark construes too broadly the extent of

his First Amendment rights and thus slights the

interest of the State in providing its educational

services according to policies it deems proper. Clark

would have us drastically and radically curtail the

scope of discretion which may be exercised by a

state school in deciding whom it shall rehire. Sec-

ond, Clark ignores the factual differences between

his case and a case like Pickering. His disputes

with his superiors and colleagues about course con-

tent and counselling were not ‘matters of public

concern’ and involved Clark as a teacher rather

than as an interested citizen. Compare also Perry

v. Sindermann, 408 U.S. 593, 595, 598, 92 S.Ct.

2694, 33 L.Ed.2d 570 (1972); Donahue v. Staunton,

471 F.2d 475 (7th Cir. 1972). Further, Clark has

cited no sound authority for his proposition that

he had a constitutional right to override the wishes

and judgment of his superiors and fellow faculty

members as to the proper content of the required

health course and the inadvisability of engaging in

extensive personal counselling of students, two of

the three matters about which most of the defend-

ants were particularly concerned.

The same reasoning applies to Clark’s criticisms

of NIU’s administration and faculty in front of

students. We think the district court correctly de-

cided that this conduct also was not protected by

12

the First Amendment. Pickering, which guards a

public school teacher’s right to speak out publicly

on issues of public concern, is factually distinguish-

able from the present case. However, we do rec-

ognize that, although academic freedom is not one

of the enumerated rights of the First Amendment,

Parducci v. Rutland, 316 F.Supp. 352, 355 (M.D.

Ala. 1970), it is now clear that academic freedom,

the preservation of the classroom as a ‘market place

of ideas,’ is one of the safeguarded rights. Healy

v. James, 408 U.S. 169, 180-181, 92 S.Ct. 2338, 33

L.Ed.2d 266 (1972). But we do not conceive aca-

demic freedom to be a license for uncontrolled ex-

pression at variance with established curricular con-

tents and internally destructive of the proper func-

tioning of the institution. First Amendment rights

must be applied in light of the special character-

istics of the environment in the particular case.

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503, 506, 89 S.Ct. 733,

21 L.Ed.2d 731 (1969); Healy, supra. The plain-

tiff here irresponsibly made captious remarks to a

captive audience, one, moreover, that was composed

of students who were dependent on him for grades

and recommendations. See Ferguson v. Thomas,

430 F.2d 852, 858 (5th Cir. 1970).

Furthermore, Pickering suggests that certain legiti-

mate interests of the State may limit a teacher’s

right to say what he pleases: for example, (1)

the need to maintain discipline or harmony among

co-workers; (2) the need for confidentiality; (3) the

need to curtail conduct which impedes the teacher’s

proper and competent performance of his daily du-

ties; and (4) the need to encourage a close and

personal relationship between the employee and his

13

superiors, where that relationship calls for loyalty

and confidence.” (p. 931) (emphasis added)

In Pickering v. Board of Education, 391 U.S. 563, 88

S.Ct 1731, 20 L.Ed.2d 811 (1968), in which the Supreme

Court held public criticism of board action by a teacher

which could at the most tangentially and insubstantially

be related to his employment is on balance a protected

activity for which a board may not impose retaliatory

measures. In the instant matter, no matter what varia-

tion or version of the facts is presumed, the balancing

test pronounced in Pickering, supra, and applied in Clark,

supra, and in virtually every other ensuing Federal de-

cision, is not needed. There is no need to balance one

interest as against the other because unquestionably there

has beer no intrusion of this petitioner’s freedom of ex-

pression or speech.

This is poignantly illustrated in Dr. Hausner’s testi-

mony as he described petitioner Markot’s teaching per-

formance during his evaluation:

“Q. Dr. Hausner, if my memory serves me cor-

rectly your observations on February 5th and 6th,

and I think you said one or two other meetings

with Miss Markot, at any of those times when

you’ve talked to her, and any time did you say,

‘Miss Markot, I do not want you to say some-

thing’?

A. No.

Q. Now, you look puzzled when you responded

to that. Why do you say, “no”?

A. Why should I have told Miss Markot not to

say anything?

Q. Did you tell her anything with respect to

anything she said in class, that you want her to

cease saying whatever she was saying in class?

14

A. The point is that she didn’t say anything

in class.

Q. So—

A. I would have welcomed the opportunity for

Miss Markot to communicate with her classes. In-

deed, this is a primary responsibility of an Eng-

lish teacher, to interact with pupils, to hold a mean-

ingful discussion, to enable students to interact with

each other. To respond to student questions. To

participate in a meaningful discussion and activity.

None of these things were going on. The class

was engaged in total silence on two occasions.

Q. Now, Dr. Hausner, you say you didn’t tell

her not to say anything. On the other side of

the fence, did you say, Miss Markot, I want you

to say so-and-so and so-and-so and so-and-so, and

not discuss any type of subject matters or indi-

cate to her anything that she should say in class?

A. The only thing that was said to Miss Markot

on February 5th was that ‘I would expect to see

a discussion take place the next time I come into

your classroom.’

Q. Nothing about the content?

A. No, not how to teach it. No.”

While the doctrine of academic freedom has been formu-

lated, see Healy v. James, 408 U.S. 169 (1972), it is not

conceivable that it has been extended to protect activity

involved in this dispute—the right of a teacher to in-

sist the teacher has a constitutional right to conduct a

classroom with students doing nothing but reading to them-

selves. In Hetrick v. Martin, 480 F.2d 705 (6th Cir.

1973) cert. den., 414 U.S. 1075, the Sixth Circuit sus-

tained that a state university could insist that a teacher

implement stressing the fundamentals and to teach on

15

a basic level, claiming that the First Amendment “does

not encompass the right of a nontenured teacher to have

her teaching style insulated from review by her superiors.”

Hetrick, swpra, at 709.

Also, in Ahern v. Board of Education of School Dis-

trict of Grand Island, 456 F.2d 399 (7th Cir. 1972), a

high school teacher was directed to adhere to the sub-

ject matter of the course and to utilize conventional teach-

ing methods. Dismissal of Ahern was held by the Court

affirming that a teacher has no right to teach her course

in a method that contravened the wishes of her employers,

with the implicit recognition by the Court that same did

not intrude on the free flow of ideas. Keefe v. Geanakos,

418 F.2d 359 (1st Cir. 1969), and Parducci v. Rutland,

316 F.Supp. 352 (M.D. Ala. 1970), together with host

of other cases, enabled teachers to distribute scholarly

and artistic literature even though the decisions involved

offensive language. The right to present controversial

films and articles about race relations was also cited to

be protected activity in Sterzing v. Fort Bend Independ-

ent School District, 376 F.Supp. 657 (S.D. Texas 1972),

remanded on other grounds, 496 F.2d 92 (5th Cir. 1974).

It is inconceivable that petitioners cite these decisions

and a deluge of others with the contention that a class-

room teacher has the constitutional right to remain silent

in the classroom and insist that her subject matter be

achieved by students doing nothing other than reading

to themselves.

The common thread of the above “academic freedom”

cases is the concept that teachers may not be restricted in

efforts to stimulate vigorous, free-flowing debate in their

classrooms. It is essentially to assure precisely that which

Dr. Hausner described in rendering his evaluation, that is,

a lively, energetic discussion. It is towards such an end

16

that the dissemination of materials, even though on con-

troversial subject matters so long as it possesses sound

educational value, should not be precluded.

Petitioners persist in deluging the Court with decision

after decision, whether expressed in the guise of “academic

freedom” or the “freedom of expression” argument, that

involve the activity of a board of education acting as a

censor to stifle ideas. That issue is just not involved in

the instant matter.

The argument that the individual respondent adminis-

trators in the Hawthorne Schoo] District and the respond-

ent Hawthorne Board of Education by regarding peti-

tioner’s use of “silent reading” as less than an admirable

attribute in teaching English Literature and frankly, an

indication of basic laziness, is a determination that this

Court must prohibit because it comprises an impermis-

sible intrusion into petitioner’s freedom of speech and

academic expression cannot conceivably rise to the level

of a bona fide constitutional contention. The trial Court

correctly deemed that petitioners were unable to demon-

strate that any constitutionally protected activity might

conceivably be deemed as a notivating factor in the Board’s

decision to terminate her employment. See Mt. Healthy

Board of Education v. Doyle, 429 U.S. 274 (1977).

17

There exists no sharp conflict among the United

States Circuit Courts involving recognition of a Federal

cause of action based upon the right of academic free-

dom under the First and Fourteenth Amendments of

the Constitution as it relates to utilizing a particular

reasonable teaching methodology which requires reso-

lution by the Supreme Court of the United States.

It is asserted that the decision of the Third Cireuit Court

of Appeals has now created a glaring lack of uniformity

throughout the Federal system in which most circuits

recognize the existence of a Federal cause of action extend-

ing to protect the use of reasonable teaching methodology,

while others do not. This assertion is unsupportable and

despite the redundant recital of cases alleged to support

such a contention, there is not a single decision of a Fed-

eral District Court or a Cirenit Court that remotely re-

sembles the facts involved in the instant matter.

The decisions in every instance on close scrutiny involve

only methodology that is inseparable from expression.

There is always involved a determination by the Court that

a board is attempting to stifle, squash or control the free

expression of concepts and ideas. Petitioners cite Wil-

son v. Chancellor, 418 F.Supp. 1358 (D. Ore. 1976), which

recognizes the act of teaching to be a form of expression

and descriptions of methods being used in teaching as

media. In Wilson, supra, however, the board attempted

to restrict the use of political speakers which was tanta-

mount to suppressing free expression. Likewise, reliance

is placed by petitioners on Sterzing v. Fort Bend Inde-

pendent School Dist., 376 F.Supp. 657 (8.D. Tex. 1972),

which again, although talking in terms of methodology,

involves the content of the media utilized with the Court

holding that the use of controversial films about race rela-

tions and controversial articles were protected activities

18

and that school boards may not stifle expression. Peti-

tioners can cite no case in support of the ineffable asser-

tion involved in the instant matter, and that is, the un-

impeded right of a teacher to insist “I want to indulge

in complete silence, letting students read to themselves

and do absolutely nothing else in class” and should a pub-

lic school district regard this as a dismal pedagogic per-

formance and not grant tenure this is a fatal intrusion

of her constitutional rights.

To contend that the language of various circuits through-

out the United States plucked out of context supports this

contention is pure sophistry. To convert the instances

where the courts have deemed methodolgy such as the use

of public speakers and written materials to be so inex-

tricably intertwined with freedom of expression or the

content of speech into a constitutional right of a teacher

to remain silent and do nothing other than read to herself

in class while her students read to themselves because this

is her methodology of teaching is sheer nonsense,

In East Hartford Education Association v. Board of

Education, 562 F.2d 838 (1977) the Court indicates that

one must be on guard to this clear danger of entertaining

unrealistic, tenuous and convoluted claims to First Amend-

ment intrusions, particularly in public education, with the

astute observation that:

“Because teaching is by definition an expressive ac-

tivity, virtually every decision made by school au-

thorities would raise First Amendment issues call-

ing for federal court intervention.” Id. at 589.

Federal Courts should be ever vigilant to avoid being

immersed in resolution of conflicts that arise in the daily

operation of school systems. Deviation from this pattern

should oceur only when actual, not feigned constitutional

intrusions are evident.

19

Epperson vy. Arkansas, 393 U.S. 97, 104, 21 L.Ed.2d 228,

234, 89 S.Ct. 266 (1968), set forth in cogent language the

guidelines pertaining to Federal judicial intrusion into the

operation of the public school system, stating:

“Judicial interposition in the operation of the pub-

lie school system of the Nation raises problems re-

quiring care and restraint. Our courts, however,

have not failed to apply the First Amendment’s

mandate in our educational system where essential

to safeguard the fundamental values of freedom of

speech and inquiry and of belief. By and large,

public education in our Nation is committed to the

control of state and local authorities. Courts do not

and cannot intervene in the resolution of conflicts

which arise in the daily operation of school systems

and which do not directly and sharply implicate

basic constitutional values.” (emphasis added)

The Supreme Court reiterated and expounded on this prin-

ciple in Wood vy. Strickland, 420 U.S. 308, 326, 43 L.Ed.2d

214, 227, 95 S.Ct. 992 (1975), again stating:

«* * * Tt is not the role of the federal courts to set

aside decisions of school administrators which the

court may view as lacking a basis in wisdom or

compassion, * * * The system of public education

that has evolved in this Nation relies necessarily

upon the discretion and judgment of school adminis-

trators and school board members and §1983 was

not intended to be a vehicle for federal court cor-

rection of errors in the exercise of that discretion

which do not rise to the level of violations of spe-

cific constitutional guarantees. See Epperson v.

Arkansas, 393 US 97, 104, 21 L.Ed.2d 228, 89 S.Ct.

226 (1968); Tinker, supra, at 507, 21 L.d.2d 731.”

(emphasis added)

20

Is it not evident that clearly the instant case presents

a factual setting to which the guiding principles prescribed

by the Supreme Court of the United States may be applied

with ease. Exercise of discretion by a board of educa-

tion rendered pursuant to the rational judgment of pro-

fessional educators that the extensive use of such a teach-

ing methodology is not an impressive or desirable teach-

ing attribute and while it may be tolerated or even advo-

cated by some educational experts it is not what Haw-

thorne desires, and surely it is within the prerogative of

the Board of Education to determine.

A board of education should possess the right to deny

tenure to the teacher of any subject matter considering the

opinion and observation of schoo] administrators that stu-

dents have not become involved in extensive discussions,

that a class appears to be monotonous or that the style

of the teacher in lecturing or otherwise fosters minimal

enthusiam, This and numerous similar illustrations fall

into the category of legitimate value judgments and the

exercise of reasonable discretion by a board of education.

The simple point is that the Court’s role is not to decide

educational policies or to pass on what is the proper

exercise of discretion that falls within the framework

of educational policies, The function of the Court is only

to intrude where on balance there is a blatant, clear

violation of freedom of expression, association or other

constitutional liberties.

The Court in East Hartford, supra, states that neither

allegations of free speech nor academic freedom should

override the discretion of a board of education to impose

a dress code on its teachers. In East Hartford, supra, the

Court further noted it should only intervene in school

matters when a board has strayed outside the area com-

mitted to its discretion. ‘The individual respondents and

the respondent Hawthorne Board of Education have not

21

strayed outside the area committed to their discretion

in determining from an educational viewpoint that ex-

tensive use of silent reading instead of active teaching

of English Literature is a legitimate consideration in

determining whether the property right of tenure shall

be granted to the petitioner.

In Hetrick v. Martin, 480 F.2d 705, cert. den. 414 U.S.

1075, 38 L.Ed.2d 482, 94 S.Ct. 592, it was determined that

academic freedom does not encompass the right of a non-

tenured teacher to have her teaching style insulated from

review by her superiors when they determined whether

she had merited tenure status merely because her methods

and philosophy are considered acceptable somewhere with-

in the teaching profession, and administration of the pub-

lic school may, consistent with the First Amendment, fail

to renew non-tenured teachers because of displeasure with

her “pedagogical attitudes”, teaching methods, and philoso-

phy of education.

This is consistent with the undoubted right of the State

and local board of education within limits set by the State

to prescribe the curriculum for its public schools. Epper-

son v. Arkansas, at 236. The trial Court properly recog-

nized that the canned testimony of educational expert, Dr.

Diskin, espousing the attributes of silent reading should

not be permitted to erode the discretion that appropriately

reposes with the Board of Education.

No federal court has expressed more eloquently the need

to be aware of the genuine danger of extending credence

to feigned, tenuous allegations of constitutional depriva-

tions such as appears in the instant case than our own

Third Cireuit. In Zeller v. Donegal School District Bd.

of Education, 517 ¥'.2d 600 (1975), after holding that a

hair length regulation for athletic participation rendered

by a school district does not justify a claim for constitu-

22

tional intrusion, the Court elaborated on the general sub-

ject matter of discretion as to regulations and operation

of the school district, stating:

“In summary, there are areas of state school regu-

lation in which the federal courts should not intrude.

Without attempting to survey a bright line between

permissible and impermissible intervention, we con-

clude that student hair cases fall on the side where

the wisdom and experience of school authorities must

be deemed superior and preferable to the federal

judiciary’s. We decline to cast our conclusion in the

form of a neat, stylized lable—to pitch our decision

into the jurisprudential pigeonhole of abstention. We

merely hold, as a matter of policy and in the absence

of ‘general’ and ‘transcending’ reasons to the con-

trary, that the asserted claim is not one for which

relief can be granted in a federal forum.

Having made a policy determination, it is im-

portant to underscore why we have drawn the line

we have. In full recognition of the duty of federal

courts to be hospitable, we have ruled deliberately.

We have acted because of a felt concern that the

sturdy tree of the federal judiciary is in need of

pruning if it is to remain strong and stand tall, pro-

tecting basic individual liberties against unconsti-

tutional impingements. We are concerned that, if

the trimming process does not begin somewhere, the

tree may topple of its own weight; that the prolifera-

tion of claims with exotic concepts of real or imag-

ined constitutional deprivations may very well dilute

protections now assured basic rights. We have a

genuine fear of ‘trivialization’ of the Constitution.

If this should occur, some of the monumental accom-

plishments in defining fundamental human rights and

23

liberties may be compromised, and the protections

accorded those rights and liberties threatened.

‘We must never forget,’ in Justice Marshall’s pow-

erful phrase, ‘that it is a constitution we are ex-

pounding.’ If it is to be a document not stating

‘rules for the passing hour, but principles for an

expanding future’, we must not permit it to be seized

upon in wholesale fashion, recklessly or indiscrim-

inately. Otherwise, in every case where the defend-

ant has acted under color of state law, the visible

rules and principles of traditional disciplines of state

law may be discarded for comparatively imprecise,

newly-formed dimensions of the Fourteenth Amend-

ment’s ‘due process’ and ‘liberty’ concepts. Pre-

« dictability and reckonability of socictal regulations

will lessen, and order and regularity of the law will

suffer.” (emphasis added)

The claim of this petitioner is a striking illustration of

the concern expressed in Zeller, supra. The claim at best

is an exotic concept of an imagined constitutional depriva-

tion which dilutes and trivializes the First Amendment

concept. This Third Circuit Court of Appeals and the Fed-

eral District Courts within the Third Circuit provide no

succor to the position of petitioners. Awmiller v. University

of Delaware, 434 F.Supp. 1273 (D.Del. 1977) stated the

University school administration could not discharge a

non-tenured lecturer as a result of statements made by

him on the subject of homosexuality. To the same effect

is Eckerd v. Indian River School District, 475 F.Supp. 1350

(D.Del. 1979), which refused to permit the discharge of

a tenured teacher as a result of comments in the classroom

which were deemed not to intrude in his performance

or capacity as a teacher.

24

To conclude the individual respondents or the respond-

ent, Hawthorne Board of Education, intruded on the con-

stitutional rights of this petitioner by performing their

public duty to evaluate and assess the efficacy of her

teaching methods and philosophy of education would re-

duce the discretion of a local school board to the level of an

apparition. It would furthermore immerse the federal

courts in the day-to-day operation of the public school

system and convert the federal judiciary into a source

for the correction of errors in the exercise of disere-

tion irrespective of any actual nexus to constitutional

violations.

Petitioner Markot, despite flooding her Prief with a

seemingly endless number of citations, has yet to proffer

a single decision that remotely supports her position that

a striking conflict exists between circuits. A review of

the cases cited by petitioner disclose that a minimal num-

ber involve non-tenured personnel, but more significantly,

in virtually every instance concern a factual setting of

school districts, either in the role of censoring materials

utilized by both tenured and non-tenured teachers stem-

ming from asserted obscenities or salacious materials, or

seeking to stifle the discussion of controversial subject

matters in the community. Respondents have heretofore

stated and are constrained to reiterate by virtue of the

argument proffered by petitioners that freedom of ex-

pression or academic freedom, whether asserted to be

violated in the guise or deprivation of liberty and prop-

erty or substantive due process or any other conceiv-

able constitutional notion are just not involved in the

instant case. No one sought to tell or forbid the peti-

tioner Markot what to say. It is the contention of the

respondent Board that at the very least a board of edu-

cation possesses the discretion to conclude that an Eng-

lish teacher should not be granted tenure when her class-

25

room performance reflects that instead of active teach-

ing she is conducting a class in a fashion tantamount

to a study period in which students do nothing except

read to themselves while she reads to herself. Under

such circumstances, when a board of education denies a

tenure appointment to a teacher and then only after a

full hearing, it has complied with every conceivable re-

quirement of procedural and substantive due process.

A writ of certiorari is not warranted on a theory that

there exists a severe dichotomy between the lower fed-

eral courts or between the various circuit courts of ap-

peal. It is respectfully submitted that the decisions of

the United States District Court for the District of New

Jersey and the United States Court of Appeals for the

Third Cireuit are correct and presents no sharp consti-

tutional conflict with other circuits in the federal judi-

ciary.

CONCLUSION

For all of the foregoing reasons, it is respectfully

submitted that this Court deny the issuance of a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit.

Respectfully submitted,

Reoarvatp F. Horpxrson,

Jerrer, Hopkinson & Voce,

Attorneys for Respondents,

Law Building—Route 208,

P. O. Box 507,

Hawthorne, New Jersey 07507.

(201) 423-0100

Dated: August 1, 1981