Petition for Writ of Certiorari — Board of Education of Central District No. 1 of the Town of Addison v. James

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FILE COPY

IN THE

Supreme Court of the United States

October Term, 1972.

wo. (25504

THE BOARD OF EDUCATION OF CENTRAL DIS-

TRICT NO. 1 OF THE TOWNS OF ADDISON,

CAMERON, RATHBONE, TUSCARORA, WOOD-

HULL, THURSTON, ERWIN, LINDLEY and CAN-

ISTKO, STEUBEN COUNTY, NEW YORK: ED-

WARD J. BROWN, District Principal, Central School

District No. 1; CARL PILLARD, Principal, Addison

High School, and ROBERT ANDREWS, President

of the Board of Trustees of Central District No. 1,

Petitioners,

v.

CHARLES JAMES,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

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Harry TREININ,

Counsel for Petitioners,

11 Kast Market Street.

Corning, N. Y. 148380

GOT 962-3167.

Dated: September 29, 1972.

en eee

RAE EHTS

Table of Contents.

Opinions Below

Jurisdiction

Questions RIE Bele ge a

Statement of the Case

Reasons for Granting the Writ

1. The determination in the court below affects

the rights and obligations of every teacher

in the public schools in the United States as

well as the nature of the education that may

be received by the pupils

2. The determination of the Commissioner of

Education of the State of New York should

be considered res adjudicata

3. The “serious adverse effects on the New York

State school system” of the decision below

foreseen by the Commissioner of Education

of the State of New York warrant review by

the court

4. Previous decisions of the Supreme Court in-

dicate the absence of a substantial federal

question

Conclusion

APPENDIX:

Opinion and Judgment of the United States Court

of Appeals

19

21

ii, ;

Page

Opinien of the United States District Court ............ 40

Letter, Filed With the Cireuit Court on Behalf of

Commissioner of Education, State of New )

York 43

|

CASES CITED.

)

Adderley v. Florida, 385 U. S. 39, 87 S. Ct. 242

SERRE renee Rn ne, A er A RRO eT ee 20)

Barnett, 319 U. S. 624, 637 14, 20

Board of Education v. Roth, 405 U. S. —, 92 S.

et BE vabiaeeeta eet 0

Bond v. Dentzer (NDNY), 325 F. Supp. 1343 ........ 18

Cox vy. Louisiana, 379 U. S. 536 at 554-555, 85 S. Ct.

453, 379 U. S. 559 at 563-564, 85 S. Ct. 476... = %

Epperson, 393 U. S. 97 (19GB) 2 o...esecccnnenenconseeces 14

Fenton v. Boston School Board Committee, 26 N. E.

2d 676, cert. den. 401 U.S. 929 oo. 9)

Goldsmith v. Board of Education, 66 Cal. App. Div.

iss, Zo Pee. cs (19S) 8

Goldwasser v. Brown, 417 F. 2d 1169, cert. den. 397

ive 52 6 gpewmees 8, 20

3

: Howe v. Brown, 426 F. 2d 300 cco 18

4

4 i

3 Lackawanna Police Benevolent Association v. Balen,

Se TNE TI arcsec teteetsescrmicnncniecaiennnncs 18

ili.

Page

Nelson v. Los Angeles County, 362 U.S. 1, 9 -........... 18

O'Connor v. Hendrick, 184 N. Y. 420 ee 16

Taylor v. New York City Transit Authority, 309

I. Supp. 785, aff'd 483 F. 2d 655 (2d Circuit,

| s ; .. I8

Tinker v. Des Moines Independent Community

School District, 89 S. C. 733, page 74 ........ 5, 9, 10, 11

Wieman v. Updegraff, 344 U. S. 185, page 196... 13

OTHER AUTHORITIES.

9 U. S. C. 1254(1) -............ Spainanaatinak 2

Fe es. SU ican bacdhdiaeheeesaherenaaannninntnannianes 5

Si. C. Se ............ eiicahemuaseetcieiataatine 5

Putnam, Education Today, 1940, Page 356 —.000000.... 13

<— |S

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ae

InN THE

Supreme Court of the United States

Ocroser Term, 1972.

—»—_

Tue Boarp oF Epvucation oF CentraL District No. 1 or

THE Towns OF AppISON, CAMERON, RATHBONE, TUSCARORA,

WoopHuLL, THurston, Erwin, LinpLey anp CanistTE0,

SrevBEN County, New York; Epwarp J. Brown, Dis-

trict Principal, Central District No. 1; Cart Pitxarp,

Principal, Addison High School, and Ropert ANpREws,

President of the Board of Trustees of Central District

No. 1,

Petitioners,

v.

CHARLES JAMES,

Respondent.

=

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

The petitioners, the Board of Education of Central Dis-

trict No. 1 of the towns of Addison, et al., pray that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Second

- Cireuit entered in this proceeding on May 24, 1972.

Opinions Below.

The opinion of the Court of Appeals, 461 F. 2d 566,

appears in the appendix hereto. The opinion rendered

by the District Court for the Western District of New

York also appears in the appendix.

2

Jurisdiction.

The judgment of the Court of Appeals for the Second

Circuit was entered on May 24, 1972. A timely petition

for rehearing en banc was denied on July 12, 1972, and

this petition for certiorari was filed within 90 days of

that date. This court's jurisdiction is invoked under

28 U.S.C. 1254(1).

Questions Presented.

1. Does a teacher have a constitutional right to wear

an emblem expressing his personal political views on an

emotionally-charged political issue dividing the country,

contrary to his own professional Code of Ethies and

the direction of the Commissioner of Education in

class where he is teaching English poetry, without pre.

senting the entire range of information available in rela.

tion to such issue?

2. Ts a determination of the New York State Commis.

sioner of Education on a hearing instituted by the re.

spondent in which all of his constitutional rights were

presented res adjudicata in this ease where he is pro.

ceeding de noro without having sought a review of the

Commissioner's decision either in the state or federal

courts ?

3. Was a substantial federal question presented to the

court helow?

snietaes need bn Tse Saale tn

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We

Statement of the Case.

; The events which give rise to this action arose in

conjunction with the observance of the Viet Nam Mora-

F torium Days on November 14 and December 12, 1969.

In countless cities across the land, demonstrations

against the policy of the government in reference to its

conduct of the Viet Nam War were taking place. Stories

raighe

ee SIR TN PO ent a Rite REE iF

TSHR yg AUN RUNES A PA RSG MER PI EEE EISNER TETRIS 8 NSE ti

3

of the demonstrations monopolized the news media. Every

television news broadcast gave priority to pictures and

reports of the demonstrations in our cities. The events

were headlined in our newspapers. Never before had

Washington witnessed so huge a crowd gathered to pro-

test action of our Government.

There was demonstrated a great division of our peo- -

ple.

It is in this context—a nation divid. d—protest through-

out the land—noisy clamor on the part of many against

the Government—equally as many, if not more, determ-

ined that the action of the Government be upheld—that

respondent's actions must be judged.

On the first Moratorium Day, respondent, a probation-

ary, teacher, appeared before his English class wear-

ing a black armband.

Mr. Pillard, the school superintendent, asked that the

armband be removed. Respondent refused. Ile was asked

to see Mr. Brown, the district principal.

Mr. Brown explained to Mr. James that he considered

the wearing of the black armband a symbol constituting

political activity; that he thought it unethical for Mr.

James, as a teacher, to use the school as a forum for

expressing his personal political views, either symbolic-

ally or vocally.

Respondent was assured that there was no question

as to his right to hold the political views which he ap-

parently held or to participate in any political activities

he might desire when not on duty as a teacher; that

there was no question but that teachers could and should

4

diseuss controversial issues in school when they wer

timely and pertinent to the course being taught, but thay

the right, so exercised, also carried with it the obliga.

tion to present, objectively, all known points of viey

on the issues. That, even then, the teacher could le

it be known what his personal views were, if he pointed

out and emphasized the rights of others to hold Opposing

views.

Mr. Brown further pointed out that, in his opinion,

the wearing of the armband would tend to be disruptive

and encourage pupils to engage in disruptive demonstra.

tions; that the action would have a divisive effect on

teachers.

Mr. James refused to remove the armband and was

informed that he was suspended (App. 2la-24a).

After a meeting held the next day, the Board of

Education sent a letter to Mr. James (App. 33a).

It stated:

“The Board deems your action to be a political

act. As such, it is prohibited in the school. It is

also deemed unethical action on the part of a teacher

to engage in such activities.

“You may return to class on Monday. November

17th, 1969, with the understanding that yon en.

gage in no political activity while in the school.

“Of course, the Board recognizes fully your ab-

solute right to express outside of the school any

beliefs that you may have.”

Respondent returned to his duties on Monday, No-

vember 17th, 1969. He voiced no disagreement with the

conditions for his return as set forth in the letter.

BE FI EL OF REE FO I AE PLE FOE OY WE

Thereafter, on the second Moratorium Day on Friday,

December 12th, 1969, without any explanation or noti-

fication to the Board, Mr. James again wore an arm-

band. He was asked to remove it. Upon his refusal

to do so, he was suspended.

Under the authority of and in compliance with the

provisions of Section 3013 of the Education Law of the

State of New York, upon recommendation of the District

Superintendent, the Board of Education dismissed Mr.

James.

Mr. James petitioned the New York State Commissioner

of Education for reinstatement. This was denied (App.

%a).

Thereafter, he brought this action invoking jurisdic-

tion under Title 28 J.S.C. 2201 et seg. and Title 28 U.S.C.

1983 ef seq. (App. 3a).

Reasons for Granting the Writ.

1. The determination in the court below affects the rights

and obligations of every teacher in the public schools

in the United States as well as the nature of the educa-

tion that may be received by the pupils.

The decision herein affects the nature of the edn-

cational process to be permitted in the classroom.

The decision validates the action of a teacher in a

classroom espousing a political position at the time

of intense political turmoil involving an issue on which

the position was taken.

This court in Tinker v. Des Moines Independent Com-

munity School District, 89 Sup. Ct. 733, page 74, recog-

=

a ——

nized that the black arm bands were worn by the chil.

dren in that case.

“e * * to exhibit their disapproval of the Vietnam

hostilities and their advocacy of a truce, to make

their view known, and by their example, to ix

fluence others to adopt them.” (Italics supplied)

Thus, as far as can be found, for the first time a de

cision has been rendered determining that it is permis.

sible for a teacher in a junior high school to express

his partisan position on a political issue dividing the

country. More important, approval is given to the dis

play of partisanship under cirenmstances which do not

afford the opportunity to diseuss the issnes involved or

the expression of other views on the issue presented.

We have action sanctioned which was contrary to the

Code of Ethics adopted by the New York State Teach.

er’s Association.’

"In his reply in the proceeding before the Commissioner

‘*(Respondent) admits and alleges that the wearing of the arm.

band by respondent was a symbol of an opinion of (respondent

and was intended to convey to all who cared to observe the opin.

ion and association of the (respondent) with respect to the acts

of the administration of the Government of the United State

and its conduct of the war in Viet Nam. but denies each and

every allegation in paragraph 12 of the answer. including, but not

limited to, the allegation that the wearing of the armband was

partisan polities, including the allegation that the wearing o

the armband was contrary to the ethies of the teaching profession

and that the wearing of the armband constituted improper con-

duct on the part of the respondent.”

**4. The teacher and the school board recognize their obli-

gations to develop growing appreciations and understanding of

the principles of democracy: they refrain from using the school te

promote personal views on religion, race or partisan politics”

OE OO ED FOE Fe EES PLIES OI FETS APF

7

The action was also in violation of a directive of the

New York State Commissioner of Education issued in

anticipation of the observance of the Moratorium Days

Counsel could only find two cases in which the rights

of the teacher in the classroom in relation to the dis-

eassion of a political subject was determined.

‘feotnote continued ) :

(p. 8, Code of Ethies, Their Interpretation and a Bill of Rights

for Teachers). (Italies supplied.)

“In fulfilling his obligation to the student, the educator -

“1. Shall not, without just cause, restrain the student from

independent action in his pursuit of leaning and shall not, with-

out just cause, deny the student aceess to varying points of

rw.” (Italies supplied.)

“2. Shall not deliberately suppress or distort subject, matter

for which he bears responsibility.**

COMMITMENT TO THE Prec

In fulfilling his obligation to the public. the educator :

“4. Shall not use institutional privileges for private gain or

to promote political candidates or partisan political activities.”

(Italies supplied.)

“31. The professional teacher exercises good judgment in

politieal activity. Ile properly may urge friends and acquain-

tanees to support school bond issues or to vote for candidates

in any election. The use of school time or school premises for

partisan political activity is improper” (p. 17, Code of Ethics).

(Italies supplied.)

"After discussing the problem of whether or not school

should be closed on Moratorium Days, it gave its attention to

the manner in which any special activities related to the sig-

nificance of the day should be carried on. The directive con-

tinued

“We would recommend that consideration be given to

the following factors:

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ater a eral Rah A 8 “ ~~ we abe “aa

In Goldsmith v. Board of Education, 66 Cal. App. Diy,

157, 255 Pac. 783 (1924), the court in upholding the sus.

pension of a teacher, used the following language:

“It is to be observed that the advocacy before

the scholars of a public school by a teacher of

the election of a particular candidate for a public

office introduces into the school questions wholly

foreign to its purposes and objects; that such

conduct can have no other effect than to stir up

the students over a contest for a political

and the result of this would be inevitably to dis.

rupt the required discipline of a public school.”

Recently, the subject was considered in Goldwasser r.

Brown, 417 F. 2d 1169, cert. den. 397 U. S. 922. Plain.

tiff was dismissed for discussing foreign policy and racial

prejudice in his classes.

The dismissal was upheld despite the claim that it inter.

fered with plaintiff's right to free speech.

The court pointed out that appellant was fired for

what he said within the classroom; that his job was to

teach foreign officers English—not current events, political

science, sociology or international relations (p. 1177).

In our case, also, appellant was engaged in teaching

English.

(footnote continued):

**3. The school posture should be neutral and objective.

Administrators and staff members should avoid taking

positions on controversial matters which may reflect on

the objectivity of the school.

“4. If controversial statements are to be made by others,

efforts should be made to assure that all sides of the

question are given appropriate attention.’’ (Italics sup-

plied.)

In its decision, the court defined the competing inter-

ests of the parties as follows:

“Government’s interest as an employer is in

heightening the level of the publie service it rend-

ers by assuring the efficiency of its employees

in the performance of their tasks; and efficiency

comprehends the maintenance of discipline, the pre-

valence of harmony among co-workers, and the elim-

ination of conduct which may reasonably be thought

to have ‘impleaded the proper performance’ by a

teacher of ‘his daily duties in the classroom.’

“Conversely, the free speech interest of the

teacher is to have his say on any and every thing

about which he has feelings, provided there is no

significant likelihood of his impairment of his ef-

ficiency” (p. 1176).

The court held:

“e © * observations on Vietnam * * * would appear

to have, at best, minimal relevance to the immedi-

ate classroom objectives.”

The court stresses that appellant was fired for what

he said within the classroom— and not for airing his

views outside the classroom to anyone who would listen.

Thus, we have a situation parallel to our ease and

the distinction from the Tinker ease pointed out.

The net result of the decision helow is that a teacher

is permitted to express his political beliefs in the absence

of diseussion of those beliefs or of an opportunity for

the expression of other views on the issue presented.

That it was done silently and without comment makes

it all the more objectionable. Literally, a placard es-

Se NER ORIN A ae eee |

10

pousing a political cause is placed before the students

and given the imprimature of the teacher; no comment

is made and no discussion that might lead to the ex.

posure of differing views is invited.

With the well-known inclination of youngsters to emp.

late their teachers and follow their examples, the effec

of this display of the teacher’s political position requires

no further comment.

In its decision in the court below, the court started its

analysis of the Tinker case with the quotation that neither

students nor teachers “shed their constitutional rights

to freedom of speech or expression at the school house

gate,” 292 U. S. at page 506.

From this starting point, the entire decision apparently

proceeds on the premise that the position of the teacher

and the pupil in reference to the right of free speech

is identical. Little cognizance ix given to the fact that

once beyond the school house gate, pupil and teacher

assume entirely different roles; that the student, by law.

is required to attend; that the teacher is hired to teaeh—

English in this ease. Sight is lost of the fact that the

teacher in the classroom is the representative of the Board

and oceupies a position of authority: hix words earry

weight and his examples are to be followed. While the

student is accepting learning, the teacher ix imparting edu

eation. By acting as he did, Mr. James violated not only

the Code of Ethies of his profession and the direetive

of the Commissioner of Education, but the very essenee

of the American educational system * * * “to present

a fair summary of the entire range of opinion so that the

student may have complete access to all facets and phases

of the subject.” Commissioner of Education Decision

(p. 30a, App.).

woe

11

It is to be noted, that in the Tinker case, the decision

specifically pointed out that

“* * * there is here no evidence whatever of peti-

tioners’ interference, actual or nascent, with the

schools work or of collision with the right of other

students to be secure and to be let ‘alone. Ae-

cordingly, this case does not concern speech or ac-

tion that intrudes upon the work of the school or

of the right of other students.” 89 Sup. Ct. p.

733. (Italics supplied.)

Apparently, the court below equates “interference” with

“the school’s work or collision with the rights of other

students” in connection with the necessity of a showing

of a forecast of “substantial disruption of or material

interference with school activities * * *” (p. 3247).

The function of the school is to teach its students.

Disruption of its functions is not brought about by physi-

cal violence alone. Much greater violence can be done

to the edueational process by the improper exercise of

the teacher's duty—to teach; to teach all relevant points

of view on a controversial subject—not to project his

personal opinion to the exclusion of all others.

Disruption of the educational process is not by riot

alone. At worst, that is transitory. More damage can

he effected by indoctrination of personal political be-

lief. The damage is mere subtle and longer lasting.

An interesting sidelight on this phase of the case was

afforded during argument in the Circuit Court. During

(liseussion as to whether a showing of physical disrup-

tion was required to be shown, petitioners’ counsel in-

quired, “Do we have to wait until the house burns down

before we can call the fireman?”

12

One of the judges, placing his head in his hands

replied, “Counsel, under the first amendment cases, I am

afraid you are right.”

If that he the state of the law, applicable to the class.

room situation, a persuasive argument for the grant of

this petition is presented.

The heart of the educational issue presented in this

case was well stated by the Commissioner of Educa.

tion of the State of New York in his decision on the

appeal of Mr. James in which the position of the school

hoard was upheld. There the Commissioner stated (p.

30, a, App.) :

“It is a matter of fundamental educational policy

that whatever subject of instruction may be in-

volved, the teacher must present the entire range

of information available in relation to such subject.

If the subject matter involves conflicting opinions,

theories or schools of thought, the teacher must

present a fair summary of the entire range of

opinion so that the student may have complete

access to all facts and phases of the subject.

Petitioner, in this case, in wearing the black arm

band in his classroom was presenting only one

point of view on an important public issue on

which a wide range of deeply held opinion and con-

viction exists.” (Ttalies supplied.)

The decision of the Commissioner was in conformity

with the memorandum previously sent by the Commis.

sioner’s office in reference to the conduct of schools on

Moratorium Days and with the Teacher’s Code of Ethics.

The conflict presented in this case between the extent

of the rights of teachers to freedom of personal expres-

sion in the classroom, the nature of the obligation of

teachers as to teaching duties, the rights of students as

13

to what they are to be taught; the very essence of our

educational system are involved in the determination of

this case. It is respectfully submitted, the problems

deserved the attention of the court.

If for no other reason, this court should pass on the

case to expunge from the record the statement by the

court below at page 3248, that

“a principal function of all elementary and second-

ary education indoctrinative—whether it be to teach

the ABC’s or multiplication tables or to transmit

the basic values of the community.” (Italics sup-

plied.)

To claim that education is indoctrinative immediately

brings to mind the systems of education of Communist

Russia, Nazi Germany or Facist Italy.

Particularly is this so if we accept the definition of

indoctrination hy Dewey, one of the great philosophers

on the American educational scene. He stated that

“T shall take indoctrination to mean the syste-

matic use of every possible means to impress upon

the minds of pupils a particular set of political

and economic views to the exclusion of every other”

(Education Today, Putnam, 1940, p. 356).

Quite to the contrary, the function of American edu-

cation has always been considered to train the mind to

evaluate, to diseern, to receive as much information on

any given subject as is available and then to be so

trained as to be able to choose what to the individual

is the more valid choice. For no other reason, certiorari

should he granted so that this court may have an op-

portunity to reject the intimation of the court below and

to restate the function of American education as de-

serihed in Wieman +. Updeqraff, 344 U. S. 185, page 196:

RRR nrc RR ET OSE Tra CARTIER ER NEL Se pS ty Se

|

Ae iS Aa ONES Ae

Pica Sy AE

Vat NES TS

AALS He INE NOLIN Heese’

14

“It is the special task of teachers to foster those

habits of open mindedness and critical inquiry

which alone make for responsible citizens, who jp

turn make possible an enlightened and effective

publie opinion. Teachers must fulfill their fune.

tion by precept in practice by the very atmosphere

which they generate; they must be exemplars of

openmindedness and free inquiry.” (Italies sup.

plied.)

Or, as stated, conversely, in Epperson, 393 U. 8. 97

(1968) :

“There is, and can be no doubt, that the First

Amendment does not permit the State to require

that the teaching and learning must be tailored

to the principals or provisions of any religious

sect or dogma.”

Can it be denied that if the state required that Mr.

James wear the black arm band on the Moratorium Days

that such action on the part of the state would be un.

constitutional? Why should a teacher, on his own voli-

tion, have the same authority to affect the education

and thinking of his students that would he denied him

if he were acting in his capacity as an agent of the state?

The reason for the action—whether state directed or

teacher inspired is of little moment. The action taken

is the same. The result from the point of view of the

student is equally objectionable.

Or, as stated in Barnett, 319 U. S. 624, 637:

“Free public education if faithful to the ideal

of secular instruction and political neutrality will

not be partisan or enemy of any class, ereed, party

or faction.”

Tn effect, the decision helow gives a teacher the right

to wear any symbol, expressive of any political view,

ONE SEE ELE EOI. IOI ET NT EOE BTS PORE LGD IRIN EE RR

15

without hinderance. Granting a teacher the right to wear

a black arm band as a symbol of opposition to govern-

ment action is to start on a course that may lead to dis-

aster in our schools.

Once that right is granted, the right could not be de-

nied to others who agree with plaintiff. Then, a similar

right must be granted to those who disagree with plain-

tiff and his adherents.

Let us assume that we have a school with fifty teach-

ers. Ultimately, we may have twenty-five who favor

one course of political action with possibly the other

twenty-five proclaiming an opposite point of view.

Is that the setting that is desirable for the operation

of a school or for the education of our children?

The issue can then be extended beyond Vietnam. The

question of race could be so debated. Who could then

deny the Black Panther the right to wear the symbol

of his cause or the Ku Klux Klan member the right to

wear the symbol of his political faith or social helief.

Could we then deny the Nazi the right te wear his

swastika or the Communist his hammer and sickle?

This is what is involved in this case—The integrity

of the schoolroom—Whether or not the school should be-

come a battleground for opposite political faiths each

seeking adherents not only on the faculty but, above all,

in the classroom among the students.

Already, we are witnessing in some of our schools the

sorry spectacle of policemen patrolling the corridors to

keep the peace between opposing groups of students.

No action should be taken which may pave the way for

the possibility that we multiply the issues requiring such

action.

16

The power and influence of a symbol was recognized

in the New York case of O’Connor v. Hendrick (184 N. Y.

421).

The Court of Appeals had before it the question as to )

whether a Catholic Nun should be permitted to teach

in a public school while wearing a distinctive religious

garb.

The Commissioner promulgated an order prohibiting

teachers from wearing the costume in question while

engaged in the actual work of teaching.

What the courts there said about the religious garh

is equally applicable to the black arm band worn by

respondent.

“There can be little doubt that the effect of the

costume worn by the Sisters of St. Joseph’s at all

times in the presence of their pupils would be to

inspire respect if not sympathy for the religions

denomination to which they so manifestly belong.

To this extent, the influence was sectarian even

if it did not amount to the teaching of denomina-

4 tional doctrine” (p. 428).

To paraphrase—by the same token, the wearing of his

symbol by respondent would inspire respect and sympathy

for his belief even if it did not amount to the teaching

of political doctrine.

Discussing the reasonableness of the regulation of garb

worn by teachers, the court makes a statement peculiarly

apt to the facts in this case.

17

“So also, it would be manifestly proper to pro-

hibit the wearing of badges calculated on particular

occasions to constitute cause of offense to a con-

siderable number of pupils. For example, the dis-

play of orange ribbons in a public school in a

Roman Catholic community on the 12th of July”

(p. 429).

No one argues against the discussion of the issues of

the Vietnam War or any other political issues in our

schools. They should be argued and discussed—dis-

cussed fully and completely in the proper classes and at'

the proper times by teachers acting as teachers and not

by teachers acting as partisans.

Mr. James advertised a political position. That is

what made his actions objectionable. For the arm band,

like the billboards or the newspaper ad, is the projection

of an idea. It propels its message—it asks no comment

in return and it invites no discussion. It states its posi-

tion repeatedly, and in the classroom the student does not

possess the option to put the newspaper aside or to

click off the television set.

2. The determination of the Commissioner of Education of

the State of New York should be considered res

ad judicata.

Originally, Mr. James appealed to the Commissioner

of Education of the State of New York. That appeal

arose out of the same circumstances as the present case.

On the appeal, before the Commissioner, however,

appellant did not mention the free exercise of religion.

When he sought legal relief, Mr. James had a choice:

(1) to appeal to the Commissioner; (2) to take his case

—7

18

directly to the New York Supreme Court; (3) to take

his case directly to federal court.

On his own free choice he elected to petition the

Commissioner.

In this case, Mr. James is not seeking to review the

decision of the Commissioner. He is proceeding de novo

as if the proceeding before the Commissioner has never

been held.

The district court held that since the plaintiff dig

not appeal from the Commissioner's decision, as he had

a right to do, but instead brought this action, that

“the questions raised by the complaint in this action are

res judicata” (p. 66a, App.).

Taylor v. New York City Transit Authority, 309 F.

Supp. 785, aff'd 433 F. 2d 665 (2nd Cireuit, 1970), spe.

cifically referred to the New York State Education Law,

Section 310, under which Mr. James proceeded, refers

to the available election of remedies and holds that such

judicial decisions are final, precluding action in the federal

courts.

If the Commissioner's action is found to be arbitrary

or capricious appeal could be had to the New York courts,

Bond rv. Dentzer (NDNY), 325 F. Supp. 1343.

One cannot reinstitute the same cause of action against

the same individual, based on the same array of facts,

merely by changing legal theories and sovereignties.

Howe v. Brown, 426 F. 2d 300. See, also, Nelson rv. Lo

Angeles County, 362 U. S. 1, 9.

“The Civil Rights Act does not permit a second

hite at the cherry.” Lackawanna Police Bene colew

Association vr. Balen, 446 F. 2d 52.

ee ee) ee Te nate a seein ees

a

3. The “serious adverse effects on the New York State

school system” of the decision below foreseen by the

Commissioner of Education of the State of New York

warrant review by the court.

19

The New York State Commissioner of Education has

been permitted to join an amicus curiae by the District

Court. Both there and in the Circuit Court, briefs have

been filed on his behalf. The effects of the decision

below on the educational system as visualized by the

man who heads the system is forcefully set forth in a

letter by his counsel addressed relative to a petition

for a rehearing en banc. The letter is appended to this

petition.

The fact that the chief education officer of the State

of New York claims that the decision will have “serious

adverse effects on the New York State School system,”

by itself, is sufficient to warrant the granting of the peti-

tion.

4. Previous decisions of the Supreme Court indicate the

absence of a ~ubstantial federal question.

The decision in the Goldwasser case, 417 Fed. 2d 1169,

cert. den. 397 U. S. 922, denies the right of a teacher

in the classroom to propagandize his personal views on

political and social issues, disposes of the issnes pre-

sented.

Likewise, the decision on West Vorgaed +. Barnett, 319

US. 624. in which it os states!

ot i at ne of ia 2 @ "ed pire = rile what shall

© orthend

_

Ss Sette. pet neal sali ie in

7

——_

“e © * free public education * * * will net be

partisan or enemy of any class, creed, party or

faction”

corroborates that contention.

Even in the absence of any compelling reasons for

the observance of neutrality in the propagandizing of

personal political views (as are present in the case up.

der review), the freedom to the expression of one’s views

has been restricted.

Adderley v. Florida, 385 U. S. 39, 87 S. Ct. 4

(1966) :

Cox v. Louisiana, 379 U. S. 3536 at 554-555, 85 S.

Ct. 453, 379 U. S. 559 at 563-564, 85 S. Ct. 476.

No substantial federal question was presented by the

claim of want of due process in the dismissal without a

hearing of a non-tenure teacher.

Board of Education vr. Roth, 405 U. S. —, 92 S. Ct.

2701: =

Fenton rv. Boston School Board Committee, 26 X. E.

2d 676, cert. den. 401 U.S. 929.

Conclusion.

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of-the Second Circuit.

Dated: September 29, 1972.

Respectfully submitted,

HARRY TREININ,

Counsel for Petitioners,

11 East Market Street,

Corning, N. Y. 14830

Telephone: 607 962-3167.

21

APPENDIX.

Opinion and Judgment of the United States Court of

. Appeals.

UNITED STATES COURT OF APPEALS,

For tHe Secoxp Circuit.

No. 697—September Term, 1971.

(Argued May 5, 1972 Decided May 24, 1972.)

Docket No. 72-1109

>

Caries James,

Appellant,

vw.

Txe Boarp oF Eprcatiox or Cextrat District No. 1 oF

THE Towns or Appisox, Camerox, Ratusoxe, Tuscarora,

Wooprvit, Tavrstox, Erwrs, Lixptey axp Caxisteo,

Srevsex Cornxty, New York; Epwarp J. Browx, Dis-

trict Principal, Central District No. 1: Cart Przarp,

Principal, Addison High School, and Rorert Axprews,

President of the Board of Trustees of Central District

No. 1,

Appellees.

<o

Before:

Kaufman, Anderson and Mansfield,

Cireuit Judges.

Appeal from an order of Judge Harold P. Burke in the

United States District Court for the Western District of

™

— sf

abiabe ene Hable. eR INE eral aR Re Nar onde

Pee Deh ad

wit

*

22

New York summarily dismissing a high school teacher's

complaint under 42 U.S.C. §1983, which alleged that schoo}

officials violated his constitutional rights by discharging

him because he had worn a black armband in class,

Reversed and remanded.

Burt Neuborne, New York, N. Y. (New York Civil

Liberties Union, of counsel), for Appellant.

‘Harry Treinen, Corning, N. Y. for Appellees.

John P. Jehu, Albany, N. Y., for Commissioner

of Education of the State of New York, Amicus

Curiae.

Kavurmax, Circuit Judge:

The first amendment proscription against any law

abridging freedom of expression, perhaps more than any

other constitutional guarantee, frequently brings into

sharp focus the inexorable tension between enduring con-

cerns for individual freedom and the authority required

to preserve the democracy so crucial to realizing that free-

dom. For several decades, the courts have struggled with

principles and concepts necessary to strike a functional

balance between protected speech and the government's

legitimate interest in protecting our democracy.’

The Supreme Court has more than once instructed that

“(t]he vigilant protection of constitutional freedoms is

nowhere more vital than in the community of American

schools.” Shelton rv. Tucker, 364 U. S. 479, 487 (1960),

quoted in Keyishian +. Board of Regents, 385 U. S. 589,

603 (1967); Tinker v. Des Moines Independent Community

School District, 393 U. S. 503, 512 (1969). Rightly called

the “cradle of our democracy,” our schools bear the awe-

See generally, Kaufman, The Medium, the Message and the

First Amendment, 45 N.Y.U.L. Rev. 761 (1970). (The James

Madison Lecture. )

ian Be

23

some responsibility of instilling and fostering early in

our nation’s youth the basic values which will guide them

throughout their lives. Appellant is quick to agree that

we cannot tolerate undisciplined, coercive, intimidating or

disruptive activities on the part of teachers or students

which threaten the essential functions of our schools, and

that such conduct requires a disciplinary response. But,

the issue in this case is whether, in assuming the role of

judge and disciplinarian, a Board of Education may for-

bid a teacher to express a political opinion, however be-

nign or noncoercive the manner of expression. We are

asked to decide whether a Board of Education, without

transgressing the first amendment, may discharge an 11th

grade English teacher who did no more than wear a

black armband in class in symbolic protest against the

Vietnam War, although it is agreed that the armband

did not disrupt classroom activities, and as far as we

know did not have any influence on any students and did

not engender protest from any student, teacher or parent.

We hold that the Board may not take such action.

The facts essential to a resolution, of the conflicting

interests are undisputed. On June 7, 1969, Charles James

was employed as an 11th grade English teacher at Addi-

son High School, located near Elmira, New York. He

previously had taught in the New York City publie schools.

After moving to the Elmira area, James, a practicing

Quaker, joined the Elmira Meeting of the Religious So-

ciety of Friends.

When November 14 and December 12, 1969, were desig-

nated as “moratorium” days by the opponents of the

Vietnam War, the Elmira Meeting determined to observe

the two days by wearing black armbands.?- On November

*In a statement signed after James had been dismissed, the

members of the Elmira Meeting explained their motivation :

It is from this religious context [Quaker belief in the

futility and immorality of war] that Charles James drew

re teens Nee

a

24

14 James affixed one of the armbands, which had been

prepared by the Meeting, to the sleeve of his jacket. He

since has stated that he “resolved to wear one of the black

armbands as an expression of [his] religious aversion

to war in any form and as a sign of [his] regret over the

loss of life in Vietnam.”

Shortly after school began that day, Car! Pillard, the

Principal, entered James's homeroom, noticed the arm.

band, but made no comment. Pillard waited until midway

through the second period when James was teaching po-

etry, apparently without any incident or discussion what-

soever relating to Vietnam or the armband, to summon

James to his office and to request him to remove the arm-

band. When James refused to remove it, Pillard sent

him to the District Principal, Edward J. Brown. Brown

ordered James to remove the armband or risk suspension

or dismissal because the armband constituted a symbolic

expression of his political views.’ In addition, Brown

(footnote continued):

his moral imperative to act as he did, in wearing a black

armband—svmbol of sympathy and mourning for the dead

—on those days accepted nationally as the time to demon-

strate for peace and for an end to the killing in Vietnam.

Ilis action was as one member of this meeting. along with

other members. who chose out of the same deep convie-

tions to wear a black armband all and every day of the

moratoriums.

*Brown apparently assured James that there was no ques

tion as to his right to hold political views or to participate in

political activities outside of school. Controversial issues, he

said, should not be discussed in school unless they are relevant

to the subject matter being taught and all points of view are

objectively presented. He relied in part on a letter of No

vember 3. 1969, from Herbert F. Johnson, Deputy Commis-

sioner of the Department of Education of New York, which set

forth the Department’s policies with respect to the upcoming

moratorium days: ‘‘The school posture should be neutral and

objective. Administrators and staff members should avoid taking

2:3

feared that “wearing the armband would tend to be dis-

ruptive and would possibly encourage pupils to engage in

disruptive demonstrations.” Wl James again refused

to remove the armband, Brown iarily suspended him

and ordered James to leave the school at once.

The following day James received a letter from the

Board of Education of Central District No. 1, reinstating

him on “the understanding that [he] engage in no political

activities while in the school.’”* James resumed his teach-

ing duties, but, steadfastly abiding by his principles,

whether religious (Quakers are doctrinally opposed to

war) or political in nature, he came to school wearing an

armband on December 12, the second moratorium day. He

was summarily suspended as soon as Brown learned that

James again had worn an armband. Here, too, the record

(footnote continued):

positions on controversial matters which may reflect on the

objectivity of the school.” In addition, Brown suggested that

it was a breach of professional ethics to use the classroom to

promote partisan politics. See New York State Teachers Ass’n,

Joint Code of Ethics.

*The letter in full read:

The Board of Education of Addison Central School Dis-

trict has conferred with counsel and very thoroughly dis-

eussed the facts of your situation. The Board has, unani-

mously, confirmed the action of District Principal Ed-

ward J. Brown regarding your suspension on Friday,

November 14, 1969.

The Board deems your action to be a political act. As

such, it is prohibited in the School. It is, also, deemed

unethical action on the part of a teacher to engage in such

activity.

You may return to class on Monday, November 17,

1969, with the understanding that you engage in no po-

litical activities while in the School.

Of course, the Board recognizes fully your absolute right

to express outside of the School any beliefs that you may

have.

is barren of a scintilla of evidence indicating that there

were any incidents or threats to school discipline, that

any students or teachers had complained of or were of.

fended by James’s first or second syinbolic protest, or

that the armband constituted more than a silent expres.

sion of James’s own feelings. On January 13, however,

without affording James a hearing, the Board of Educa.

tion of Central District No. 1 discharged him from his

teaching position in accordance with §3013(1) of the Ed.

ucation Law of New York.*”

James appealed his dismissal to the New York State

Commissioner of Education, Ewald B. Nyquist, asserting

that his dismissal infringed upon his first amendment

rights and deprived him of due process of law.’ The

“hearing” before the Commissioner, as we were informed

at the argument of this appeal, was no more than an in-

formal round-table discussion hetween the Commissioner,

the parties and their attorneys. No transcript of the

proceedings was made. On September 23, 1970, Commis.

sioner Nyquist filed his decision. Although he recognized

that a board of education does not have unfettered dis.

cretion to dismiss a probationary teacher,’ he concluded

that James had violated “sound educational principles”

26

5James, in his first vear of teaching at Addison, was ap-

pointed as a “probationary” teacher. Under the provisions of

§3013(1) of the Education Law of New York, the services of

a probationary teacher ‘“‘may be discontinued at any time during

such probationary period, upon the recommendation of the dis.

trict superintendent, by a majority vote of the board of edueca-

tion or trustees.”

*Sce Education Law of New York §310.

7Commissioner Nyquist relied on his earlier decision in

Matter of Collins, Decision No. 8051, August 26, 1969:

While I fully agree that a board of education has

broad powers over a probationary teacher and may dis-

miss a probationer without giving a reason, the exer-

cise of these powers by a board must be made ‘‘within

27

and that his actions “were not constitutionally protected.”

In addition, he reaffirmed the Board of Education’s ab-

solute right to dismiss a probationary teacher without

affording the teacher a hearing or explaining the basis of

the discharge.

Thereupon, James instituted this action in the Western

District of New York against the Board of Education of

Central District No. 1, Edward Brown, Carl Pillard and

Robert Andrews, President of the School District Board

of Trustees, alleging that his dismissal violated 42 U.S.C.

{1983."5. Judge Burke, in a brief memorandum, denied

James's motion for summary judgment and granted the

defendants’ motion for a judgment, summarily dismissing

the complaint on the merits, seemingly on two grounds:

first, that the issues raised by the complaint were res

judicata, and second, that none of James’s federally pro-

tected rights was violated.’

(footnote continued):

the ambit of the purpose for which they were granted

and in a manner consistent with our basie Constitutional

framework.’’

See also Puentes v. Board of Education, 24 XN. Y. 2d 996 (1969),

rov'g 24 A. D. 2d 628 (1966).

“42 U.S.C. $1983 provides:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citizen

of the United States or other person within the juris-

diction 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.

James’s complaint asserts violations of his rights to free speech,

free exercise of religion, procedural due process and equal pro-

tection of the laws.

‘In this posture of the proceedings, we must accept all

factual allegations in the complaint as true.

28

I.

At the outset we are presented with the contention that

the claims asserted below are res judicata. We consider

this to be wholly without merit. Appellees argue that

James, at his own choosing, was given the full opportunity

to litigate his claims before the Commissioner of Educa-

tion, a “judicial officer” of the State, and therefore that

James should be bound by the Commissioner’s decision,

Judge Burke buttressed their position with a pointed ref.

erence to James’s failure to appeal the Commissioner's

decision to the New York courts.”

It is no longer open to dispute that a plaintiff with a

claim for relief under the Civil Rights Act. 42 U.S.

§1983, is not required to exhaust state judicial remedies

ay e. g., Monroe v. Pape, 365 U.S. 167 (1961): Rodrign

*. McGinnis, F. 2d , 1971 Slip Op. 1527 (2nd Cir

Pig 25, 1972) (en banc): Sectre re McGinnis, 442 F -

178, 182 (2nd Cir. 1971) (en banc), cert dened, 4 1s

1049 (1972). It is still the law in this Circuit, how

that a Civil Rights plaintiff must exhaust state administra

tive remedies. Eisen v. Eastman, 421 F. 2d 560 (2nd Cir

1969), cert. denied, 400 U. S. 841 (1970). It hardly can

he suggested that a plaintiff having followed the course

laid out by Eisen, was to be barred henceforth from press

ing his claim to final judicial review or to be deprived

of his opportunity to litigate his constitutional claims in

the judicial forum of his choice. To adopt the full in-

plication of appellees’ argument would be to effect a ju-

dicial repeal of 42 U.S.C. §1983 and strike down the Sn-

Although §310 of the Education Law of New York provides

that any decision of the Commissioner ‘‘shall be final and con-

elusive, and not subject to question or review in any place or

court whatever,’’ New York courts have reviewed decisions

where there is a claim that the decision was arbitrary or an

abuse of discretion. Sec, e.g., Board of Education v. Allen,

6 N. Y. 2d 127 (1959).

29

preme Court’s decision in Monroe v. Pape, supra. James

would be placed in the paradoxical position of being

parred from the federal courts if he had not exhausted

administrative remedies and barred if he had.”

II.

We come now to the crucial issue we must decide—did

the Board of Education infringe James’s first amendment

right to freedom of speech?”

Any meaningful discussion of a teacher’s first amend-

ment right to wear a black armband in a classroom

as a symbolie protest against this nation’s involvement in

the Vietnam War must begin with a close examination of

the case which dealt with this question as it applied to

a student. Tinker +. Des Moines Independent Commu-

vty School District. supra. Mary Beth Tinker, a junior

vuh school student, her older brother and his friend,

) joh seheol students, were suspended from school

\ppeloes’ rehance on Judge Weinsiein'’s opinion in Taylor

Vow Yor. (ty Transit Authority, 309 F. Supp. 785 (E.D.N.

Y aff'd 444 Fo 24 665 (2d Cir, 1970), is misplaced. Judge

Wenstem’s determination that Taylor could not raise his pro-

edural due process claim in the federal courts, after he had ap-

pealed his discharge as a Transit Authority employee to the

New York City Civil Service Commission and then the New

York courts, was based on Taylor's failure to raise that claim

before the administrative agency. The decision was nothing more

than a logical extension of Eisen v. Eastman, supra, through

the application of traditional notions of merger and bar. Since

no transcript of the proceedings before Commissioner Nyquist

was made, James cannot be charged with the failure to raise

any of his claims. Suffice it to say that appellees conceded at

oral argument that the broad range of James’s grievances were

discussed informally before the Commissioner.

“Tn view of our decision, it is unnecessary to reach the claims

that the discharge violated his rights to free exercise of religion

and equal protection of the laws.

i

4

:

qi

i)

PRs

LEIP SEIRO LE

Selatan

nn Ree

Bee SSSR

30

for wearing black armbands in school to publicize their

opposition to the war in Vietnam. Noting that neither

students nor teachers “shed their constitutional rights

to freedom of speech or expression at the schoolhouse

gate,” 393 U. S. at 506, the Supreme Court held that

a school cannot bar or penalize students’ exercise of prim.

ary first amendment rights akin to “pure speech” without

“a showing that the students’ activities would materially

and substantially disrupt the work and discipline of the

school.” Jd. at 513.

With respect to both teacher and student, the responsi-

bility of school authorities to maintain order and disei-

pline in the schools remains the same. The ultimate goal

of school officials is to insure that the discipline necessary

to the proper functioning of the school is maintained

among both teachers and students. Any limitation on the

exercise of constitutional rights can he justified only by a

conclusion, based upon reasonable inferences flowing from

concrete facts and not abstractions, that the interests of

discipline or sound education are materially and substan-

tially jeopardized, whether the danger stems initially from

the conduct of students or teachers. Although it is not

unreasonable to assume that the views of a teacher oceupy-

ing a position of authority may carry more influence with

a student than would those of students interesse, that as-

sumption merely weighs upon the inferences which may be

drawn. It does not relieve the school of the necessity to

show a reasonable hasis for its regulatory policies. As the

Court has instructed in discussing the state’s power ‘to

dismiss a teacher for engaging in conduct ordinarily pro-

tected by the first amendment: “The problem in any case

is to arrive at a balance between the interest of the

teacher, as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in

promoting the efficency of the public services it performs

31

through its employees.” Pickering v. Board of Education,

391 U. S. 563, 568 (1968).**

It is to be noted that in this case, the Board of Education

has made no showing whatsoever at any stage of the

proceedings that Charles James, by wearing a black arm-

pand, threatened to disrupt classroom activities or created

any disruption in the school. Nor does the record demon-

strate any facts “which might reasonably have led school

authorities to forecast substantial disruption of or material

interference with school activities * * *.” Tinker v. Des

Moines Independent Community School District, 393 U.

S, at 514. All we can learn from the record is that in the

PR Pa

“Pickering dealt with the power of the Board of Education

to discharge a high school teacher for sending a letter to the

local newspaper criticizing the Board and the district superin-

tendent of schools for their fiscal policies. The Board insisted

that the letter was disruptive of faculty discipline and would

tend to foment “controversy, conflict and dissension’’ among

teachers, administrators and residents of the district. The Court

held that the Board had violated the teacher’s first amendment

rights. Appellees would distinguish Pickering by having us draw

an arbitrary line between first amendment rights exercised in

school and out of school. The distinction is deceptively simple

and cannot withstand scrutiny. Sce Goldwasser v. Brown, 417

F. 2d 1169 (D.C. Cir.), cert. denied, 397 U. S. 922 (1969)

(Pickering test applies to teacher’s classroom speech at <Air

Force language school). Appellees concede, as they must, that

James has a constitutional right to wear a_ black armband

off school premises—every day if he so pleases. But, it is not

unreasonable to assume that James, as a teacher, might gain

notoriety for such out-of-school conduct and become a vanguard

of the local opposition to the Vietnam War. In that event, one

could not divorce his person from the idea, and he would become

an embodiment of his symbolic protest no matter where or how

he appeared—even if temporarily without his armband. Al-

though we can imagine situations in which a teacher would be

so controversial because of his tenets or beliefs that he would

be a disruptive force in the school, no one would suggest that

he could be dismissed merely because he was identified with

a particular cause if he did not preach that cause in class.

— as

Oe tie ol

ee ee

of expression." Jd. at 508.

so essential to our system of democracy, we must be will.

ing to assume the risk of argument and lawful disagree.

ment. Jd. at 508-09; Terminiello vr. Chicago, 337 U. 8.1

(1949). This is entirely different, however, from saying

that the school must await open rebellion, violence or ex.

tensive disruption before it acts. Compare Burnside r.

Buyors, 363 F. 24 744 (5th Cir. 1966), with Blackwell r.

Txsaquena County Board of Education, 363 F. 2d 749 (5%

Cir. 1966)."°

“The facts here call more clearly for the protection of

James's rights than did those in Tinker. In his dissenting opin-

ion in Tinker, Justice Black emphasized that “‘le]ven a causal

reading of the record shows that the armband did divert students

minds from their regular lessons, and that talk, comments, etre.

made John Tinker ‘self-conscious’ in attending school with his

armband.” 393 T. S. at 518. The record in this case dos

not support similar inferences.

“In Burnside vr. Byars, the Fifth Circuit ordered that sched

authorities be enjoined from enforcing a regulation agains

wearing freedom buttons when there was no evidence of dis

ruption. The same panel of the Fifth Cirenit on the same day in

Issaquena upheld a similar regulation in another school b-

cause students wearing the buttons had attempted to force u-

willing students to wear the buttons. When the offending sto-

dents were ordered to remove their buttons and cease distributing

them in school, they engaged in disruptive activities.

ag

II.

That does not end our inquiry, however. The interest

of the state in promoting the efficient operation of its

«hools extends beyond merely securing an orderly class-

room. Although the pros and cons of progressive educa-

tion are debated heatedly, a principal function of all ele-

mentary and secondary education is indoctrinative—

whether it be to teach the ABC's or multiplication tables

to transmit the basic values of the community. “[S]ome

measure of public regulation is inherent in the very pro-

vision of public education.” Note, Derelopments in the

Lew-Academic Freedom, 81 Harv. L. Rev. 1045, 1053

(1968). Accordingly, courts consistently have affirmed that

drrieulum controls belong to the political process and |o-

cal school authorities. “Courts do not and cannot intervene

in the resolution of conflicts which arise in the daily op-

eration of school systems and which do not directly and

sharply implicate constitutional values.” Epperson r.

Arkancas, 393 U. S. 97, 104 (1968).

Appellees argue that this broad power extends to con-

trolling a teacher's speech in public schools, that “assump-

tions of the ‘free marketplace of ideas’ on which freedom

of speech rests do not apply to school-aged children, espe-

cally in the classroom where the word of the teacher may

carry great authority.” Note, Dereclopments in the Law-

Jeademic Freedom, 1 Wary. L. Rev. at 1053. Certainly

there must be some restraints because the students are a

“captive” group. But to state the proposition without

“Even in this area there are constitutional limitations. In

Epperson, for example, the Court held that a state could not

prevent a high school biology teacher from teaching students

about Darwin's theory of evolution because the regulation would

le an establishment of religion in violation of the first amend-

went. Nor can a state prevent the teaching of modern forcign

languages under the guise of promoting “‘civie development.”

Mewr v. Nebraska, 262 U.S. 390 (1923).

er

ee oe

"|

qualification is to uncover its fallacy. More than a deca

of Supreme Court precedent leaves no doubt that we cap

not countenance school authorities arbitrarily censoring ,

teacher's speech merely because they do not agree with th

teacher's political philosophies or leanings. This is par.

ticularly so when that speech does not interfere in any way

with the teacher's obligations to teach, is not coercive ani

does not arbitrarily ineuleate doctrinaire views in th

minds of the students. €/. Acwishien r. Board of Regents.

supra,

As we have indicated, there ix merit to appellees’ argy

ment that Tinker does not control this case, heeanse »

teacher may have a far more pervasive influence over 9

student than would one student over another. Although

sound discussions of ideas are the beams and buttresses

of the first amendment, teachers cannot be allowed to pa-

trol the precincts of radical thought with the unrelenting

goal of indoctrination, a goal compatible with totalitarian.

ism and not democracy. When a teacher ix only content

if he persuades his students that his values and only his

values ought to he their values, then it is not unreasonable

to expect the state to protect impressionable children from

such dogmatism. But. just as clearly. those charged with

overseeing the day-to-day interchange between teacher and

student must exercixe that degree of restraint necessary to

protect first amendment rights. The question we mnst ask

in every first amendment case is whether the regulatory

poliey is drawn as narrowly as possible to achieve the

social interests that justify it. or whether it exeeeds per-

missible bounds by unduly restricting protected speech to

an extent “greater than is essential to the furtherance of”

those interests. See United States r. OBrien, 30 U.S

367. 377 (1968). Thus, when a teacher presents a colorable

claim that school authorities have infringed on his first

amendment rights and arbitrarily transgressed on these

transcendent valnes, school authorities must demonstrate

“

dixmisel. Compare Roth vr. Board of Regents, 446 F. 2d 806

Tth Cir). cert. granted, 404 U.S. 909 (1971), and Sindermann

v. Porras, 490 F.2d 939 (5th Cir. 1970), cert. granted, 404 U.S.

“17 (1971) (a probationary teacher has a right to a hearing

when he hax a colorable claim that his dismissal violates the

first amendment). wifh Parker v. Board of Education, 348 F.

Mi 464 (4th Cir. 1965) (a probationary teacher has no consti-

tutional right to a hearing when his contract ix not renewed).

Sve also Drerw v. Portsmouth School District, 445 F. 2a 1182.

Tiss (ist Cir. 1970). cert. denied, 402 U.S. 972 (1971); Orr &-.

Treater, 444 FP. 2d 128, 135 (6th Cir. 1971). petition for cert.

fied, 40 USAW. 3126 (Aug. 18, 1971): Shirek vr. Thomas. 447

PF. 24 1025. 1026 (7th Cir. 1971), petition for cert. fled. 407.

SLW. 3221 (Dee. 3, 1971), 40 U.S.L.W. 3375 (Jan. 21. 1972):

Note, 85 Harv. L. Rev. 1327 (1972). The Supreme Court has

beard argument in beth Roth and Sindermann, and its decision

may well be dispositive of this ixue.

“Appellees argue that James's political activity was unac-

ceptable in the classroom because the armband was “the pro-

jvtion of an idea ® © © it asks no comments in return and it

invites ne diseussion.”’ This fact alone cannot condemn a pro-

tetel metium of expression.

ae:

Moreover, we cannot ignore the fact that James was teach.

ing 11th grade (high school) English. His students wer

approximately 16 or 17 years of age, thus more mature

than those junior high school students in Tinker.

Recently, this country enfranchised 18-year-olds.” },

would be foolhardy to shield our children from political

debate and issues until the eve of their first venture into

the voting hooth. Schools must play a central role in pre.

paring their students to think and analyze and to recog.

nize the demagogue. Under the circumstances present

here, there was a greater danger that the school, by

power of example, would appear to the students to be

sanctioning the very “pall of orthodoxy,” condemned in

Keyishian, which chokes freedom of dissent.”

Finally, James was first removed from class while he

was teaching poetry. There is no suggestion whatsoever

that his armband interfered with his teaching functions,

or for that matter, that his teaching ever had

heen deficient in any respect.”

Eighteen-year-olds, in addition, are now eligible to serve

on federal juries. Pub. L. No. 92-269 (Apr. 6, 1972).

“See Hanover v. Northrup, 325 F. Supp. 170 (D. Conn

1970) (violation of first amendment rights to dismiss a junior

high school teacher who refused to lead her class in the Salute

to the Flag because she believed the phrase **with liberty and

justice for all” was an untrue statement).

“Appellees rely extensively on Goldwasser v. Brown, supra.

which is clearly inapposite. Goldwasser, a civilian, was em-

ploved as a language instructor in the Air Foree Language Schoo

to teach English to foreign military officers. After repeated

warnings against discussing controversial subjects during clas

hours, he was discharged for antiwar statements and comments

about anti-Semitism in America. In upholding the dismissal in

the face of a first amendment challenge, the court relied on find-

ings that his conduct interfered with the proper performance of

his duties because he unduly sacrificed classroom teaching hours

417 F.2d at 1176-77.

37

IV.

We emphasize that we do not question the broad discre-

tion of local school authorities in setting classroom stand-

ands, nor do we question their expertise in evaluating

the effects of classroom conduct in light of the special

characteristics of the school environment. The federal

courts, however, cannot allow unfettered discretion to

violate fundamental constitutional rights. Professor

Jaffe put it aptly in an analogous area of the federal

courts’ review power: “* * ° expertness is not a magic

wand which can be indiscriminately waved over the

corpus of an agency's findings to preserve them from re-

view.” L. Jaffe, Judicial Control of Administrative Aec-

tion 613 (1965). We cannot abdicate our responsibility

to form our own conclusions when, having thoroughly

searched the record, we find no sound constitutional basis

for the Board’s or the Commissioner’s conclusions.

The dangers of unrestrained discretion are readily ap-

parent. Under the guise of beneficent concern for the

welfare of school children, school authorities, albeit un-

wittingly, might permit prejudices of the community to

prevail. It is in such a situation that the will of the

transient majority can prove devastating to freedom of

expression. Indeed, James has alleged in his complaint

that another teacher, “without incurring any disciplinary

sanction, prominently displayed the slogan ‘Peace with

Honor’ on a bulletin board in his classroom.” This slogan

“The Supreme Court decision in Tinker instructs that the

federal courts must not accept unquestionably the school au-

thorities’ judgment as to the effects of classroom conduct or

speech. See, Note, The Supreme Court, 1968 Term, 83 Harv.

L. Rev. 7, 158 (1969): ‘‘By not deferring to the administrative

expertise of school officials, Tinker imposes new limitations on

the power of the state to restrain students from speech or con-

duct which would clearly be protected by the first amendment

if engaged in by adults.”’

has been associated with our foreign policy. If the al

legation is true, and we must assume that it is in light

of the summary dismissal of the complaint, it exemplifies

the concern we have expressed. The Board’s actions

under such cireumstances would indicate that its regula.

tion against political activity in the classroom may he

no more than the fulerum to censor only that expres.

sion with which it disagrees. See Tinker r. Des Moines

Independent Community School District, 393 U.S. at 510-

511 (petitioners were barred from wearing black arm-

hands but other students were allowed to wear political

campaign buttons and the Iron Cross, a traditional sym.

hol of Nazism). By requiring the Board of Education

to justify its actions when there is a colorable claim of

deprivation of first amendment rights, we establish a

prophylactic procedure that automatically tempers abuse

of properly vested discretion.

It is characteristic of resolutions of first amendment

cases, where the price of freedom of expression is so high

and the horizons of conflict between countervailing in-

terests seemingly infinite, that they do not yield sim-

plistie formulas or handy seales for weighing competing

values. “The best one can hope for is to discern lines

of analysis and advance formulations sufficient to bridge

past decisions with new facts. One must be satisfied

with such present solutions and cannot expect a clear

view of the terrain heyond the periphery of the imme-

diate case.” Eisner r. Stamford Board of Education, 440

F. 2d 303, 804 n. 1 (2d Cir. 1971).

It is appropriate, however, lest our decision today

(which is based on the total absence of any facts justi-

fying the Board of Education’s actions) be misunder-

stood, that we disclaim any intent to condone partisan

political activities in the publie schools which reason-

ably may be expected to interfere with the educational

process.

Accordingly, we conclude that the district court erred.

The judgment of the district court is reversed and the

ease remanded for proceedings not inconsistent with

this opinion.

<1 eal >

40

Opinion of the United States District Court.

UNITED STATES DISTRICT COURT,

Western District or New York.

—<——-—_—_

CHARLES JAMES,

Plaintiff

Us.

Tue Boarp or Epvucation or Centra District No. 1 of

THE TOWNs OF Appisox, CamERox, RatHBone, Tvrsca-

rora, WoopxuL_, Tuerstox, Erwix, Lixpiey and Cay.

stro; Stevsen County, New York; Epvwarp J. Brows,

District Principal, Central School District No. 1; Car

Pittarp, Principal, Addison High School and Roserr

Anprews, President of the Board of Trustees of Cen-

tral District No. 1,

Defendants.

Civil 1971-164

i

Burt Neuborne, Jeremiah S. Gutman, Iferman Schwartz

and Harrop Freeman, % New York Civil Liberties

Union, 84 Fifth Avenue, New York, N. Y. 10011, Attor-

nevs for Plaintiff.

Harry Treinin, 11 Fast Market Street, Corning, N. Y.

14830, Attorney for Defendants.

Commissioner of Education of New York, Amicus

Curiae, Robert D. Stone and John P. Jehu, State Eduea-

tion Building, Albany, N. Y. 12224 (of counsel).

PP te

41

The defendants by their written motion filed August

10, 1971, move to dismiss the complaint upon grounds

particularly stated therein, and for judgment on the

pleadings; and for summary judgment in their favor.

The plaintiff filed his affidavit sworn to September 27,

1971 in opposition. The matter came on for argument

September 27, 1971. Upon due consideration summary

judgment is hereby granted to the defendants as follows:

It is hereby

OrvereD, Avaupcep and Drcreep as follows: The plain-

tiff appealed to the Commissioner of Education of the

State of New York from the action of the Board of

Edueation of Central School District No. 1 of the Towns

of Addison, Cameron, Rathbone, Tuscarora, Woodhull,

Thurston, Erwin, Lindley and Canisteo; Steuben County,

relating to his dismissal. The Commissioner of Educa-

tion by decision and order dated September 29, 1970,

dismissed the appeal, holding in conclusion “Since the

actions of the appellant were contrary to sound educa-

tional principles, and since those actions were not consti-

tutionall¥ protected in the circumstances of this appeal,

the action of the respondent in terminating appellant's

probationary appointment must be sustained.” The plain-

tiff did not appeal, as he had the right to do, but in-

steal brought this action. The questions raised by the

complaint in this action are res judicata. The plaintiff

in wearing the black arm band in the classroom was ef-

fectively presenting only one side of an important poli-

tical issue. In so doing he chose to ignore the expressed

policy of the State Education Department calling for

neutrality and objectivity in dealing with “Moratorium

Days” on the part of teachers and administrators. These

were days of intense political feeling on the question of

the poliey of the Administration in reference to its con-

duet of the Viet Nam War. His actions in this respect

42

amounted to insubordination. His actions were not con.

stitutionally protected. Plaintiff’s dismissal did not vio.

late his rights under the First Amendment of the Fed.

eral Constitution, nor any of his federally protected

rights. He was not entitled to a hearing prior to his

dismissal. The complaint is dismissed on the merits.

HAROLD P. BURKE

United States District Judge

December 22. 1971.

43

Letter, Filed With the Circuit Court on Behalf of

Commissioner of Education, State of New York.

June 9, 1972

Hon. Henry J. Friendly

Chief Judge

Tnited States Court of Appeals

United States Court House

Foley Square

Yew York, New York 10007

Re: James v. Board of Education et al.

Docket No. 72-1109

Cal. No. 697

Dear Judge Friendly:

This letter is written on behalf of the New York State

Commissioner of Edueation who has appeared through-

out as amicus curiae in the above entitled matter.

We urgently support the petition for a rehearing an

bane which has been or will be filed by the hoard of edu-

cation of the Addison Central School District, Steuben

County, New York, Appellees.

We strongly feel that the decision of the Court, rend-

cred May 24, 1972, is directly contrary to sound eduea-

tional principles and will have serious adverse effects on

the New York State school system. It is directly con-

trary to the Code of Ethics adopted jointly by hoth the

Xew York State School Boards Association and the New

York State Teachers Association, and directly contrary

to specific directives issued to all school districts by the

New York State Education Department.

It is our view that this decision would open the door

to political indoctrination in the State’s classrooms.

Sie Nasr aa tia

Bary Se

pete a2 Ae ae ROLE Rs?

When the Court says:

“There is no suggestion whatever that his

[James’] armband interfered with his teaching

functions * * *.”

and

“It is appropriate, however, lest our decision to.

day (which is based on the total absence of any

facts justifying the board of education’s actions)

be misunderstood, that we disclaim any intent to

condone partisan political activities in the public

schools which reasonably may be expected to inter.

fere with the educational process.” (Italics sup.

plied.)

it is clear that the Court misapprehended the nature of

the educational process. It is exactly the act of (1) teach-

ing only one of several views of a highly controversial

subject and (2) teaching in a field in which he has no

demonstrated competence which does, in and of itself,

interfere with the educational process, which is the heart

of the problem here.

We are deeply disturbed by the holding throughout

the decision that only “disruption” and “incidents or

threats to school discipline” can be a proper basis for

action by a board of education. It is the teaching fune-

tion itself with which we are concerned rather than any

question of discipline or possible disruption. It is sub-

mitted that such an approach would divest boards of

education of control over the very core of their fune-

tions.

We are, further greatly disturbed over the Courts

sanctioning a procedure where a State judicial tribunal

(see New York Education Law sections 310, 207) renders

a judicial decision, based on the filing and service of

pleadings, memoranda of law and an oral argument

45

(characterized inaccurately by the Court “as we were in-

formed at the argument of this appeal” as “no more

than an informal round-table discussion between the

Commissioner, the parties and their attorneys”), and

the same petitioner, represented by the same counsel ig-

noring such procedure and decision, proceeds de novo in

the Federal Court. It is submitted that from the stand-

point of proper Federal judicial procedure and jurisdic-

tion, such a decision may not be collaterally attacked in

such fashion. Either the petitioner should seek to re-

view the Commissioner’s decision in the State Courts

and then appeal from them to the United States Supreme

Court; or the petitioner should seek review of the deci-

sion directly in the Federal Courts. In either case the

record, on the basis of which the Commissioner’s deci-

sion was rendered, would he before the Court. To sanc-

tion such an improper approach to the judicial function

vould have a chilling effect on any use of any State pro-

cedures, and ignores the fundamental principle of res

judicata.

We are, finally, greatly disturbed by the repeated ref-

erences by the Court to wholly nonexistent facts for

which there is no basis whatever in the record. The

Court says:

“We cannot countenance school authorities arbi-

trarily censoring a_teacher’s speech merely be-

cause they do not agree with the teacher's polit-

ical philosophies or learnings.”

There is not one scintilla of evidence in the record to

support such a statement. In fact, it is our understand-

ing that both the board of education and the adminis-

tration are divided on these issues, and it is for this

very reason—to be sure that the students will not be

proselytized one way or the other but will be given the

whole picture, with all sides explained in the class and

ee Sit Alec thet ale anal WOT OUR

pre: .. + -2-.. wopader ®

46

at the time when the subject is properly reached for

diseussion—that strict neutrality was and is required

of teachers by the board of education.

When the Court says:

“Clearly, there was no attempt by James to

proselytize his students,”

we can only ask for what other reason he could pos.

sibly have worn the armband to class?

It can hardly be maintained that limiting an English

class to the teaching of English or a mathematics class

to the teaching of mathematics, imposes a “pall of ortho.

deoxy” on the students.

Nor can such a “pall of orthodoxy” be found where a

school insists that students be acquainted with all sides

of a given subject, and only by the teacher charged with,

prepared for, and expert in, the subject involved, what.

ever it may be.

“Free public education, if faithful to the ideal of secu.

lar instruction and political neutrality, will not be parti-

san or enemy of any class, creed, party, or faction.”

(West Virginia rv. Barnette, 319 U. S. 624, 637.)

We think the Court went far afield indeed when it

said:

“* * * as far as we know [James’ armband] did

not hare any influence on any students and did

not engender protests from any student, teacher

or parent.” (Italies supplied.)

For one thing the record is wholly devoid of evidence

on this question, and, more importantly, since students

are told to look up to, emulate, and be guided by their

teachers, the influence of such expressions of political

views of teachers on students is almost impossible to

gauge especially within the confines of a lawsuit. This

47

js particularly true where no opportunity for discussion

exists—the subject of the teacher lying in other fields.

For all the foregoing reasons, amicus curiae respect-

fully supports the motion of appellees for a rehearing en

banc.

Respectfully,

JOHN P. JEHU

Attorney for Commissioner of

Education, Amicus Curiae

Education Building

Albany, New York 12224

of Counsel

Robert D. Stone

Counsel and Deputy Commissioner

for Legal Affairs

Education Building

Alhany, New York 12224

cc: Burt Neuborne, Esq.

84 Fifth Avenue

New York, New York 10011

Attorney for Appellant

Harry Treinin, Esq.

11 East Market Street

Corning, New York 14830

Attorney for Appellee

llon. A. Daniel Fusaro

Clerk

United States Court of Appeals

United States Court House

Foley Square

New York, New York 10007

IPI :sh