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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1042

## Text

| ree Seetly oo OF

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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4 4 f 4 Tae VAFRS ig Ree yet nie Oh ier “ pee ‘ ~ a alg Sy ELEN, a ~
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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

eh

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:

-- re
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.

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1454%3A1. Public record. Not legal advice.