Elenore Pred and Stanley Etersque, Plaintiffs-appellants, v. Board of Public Instruction of Dade County, Florida, a Body Corporate, Dr. Peter Masiko, Jr., Ambrose Garner and Dr. John L. Forbes, Defendants-appellees, 415 F.2d 851 (5th Cir. 1969)

This is another monument to needless waste of lawyer and Judge time and, perhaps more important, client money. For now, 14 months later, the case must go back to start the normal process of discovery leading to the production of facts or the demonstrated lack of them on which, either before or after a conventional trial, the real merits of the case will be determined. This is but a different prelude to the common refrain on the high mortality rate to a dismissal under F.R.Civ.P. 12(b) for failure to state a claim.¹  To the usual perils should be added the unsoundness — both administratively and substantively — of trying, in the orbital atmosphere of this dynamic era, to resolve new, but serious, questions of constitutional law on barebones pleadings. Courts ought not to be pulled into academic exercises on a case that factually may never be. Byers v. Byers, 5 Cir., 1958, 254 F.2d 205. Courts ordinarily should grapple with these problems on a factual record. Public Affairs Associates, Inc. v. Richover, 1962, 369 U.S. 111, 82 S. Ct. 580, 7 L. Ed. 2d 604.

Not following these principles, the District Judge, by an unrevealing order that is in no way illumined by the slightest indication of his reasons, dismissed a complaint²  charging that the public school authorities purposefully declined to accord a specific status — renewal of employment contract and granting tenure — to the plaintiff-teachers because of the exercise by the teachers of First Amendment rights of speech and association in support of causes opposed by these state school authorities. Such dismissal was too quick, to soon, too enigmatic, so we reverse.

The plaintiffs, Etersque and Elenore Pred, were teachers in the mathematics and English departments in the Miami-Dade County Junior College operated by the defendants.³  Each was in his third year of teaching under an annual contract and was eligible for a "continuing contract" tantamount to "tenure" beginning with the fourth year if he met the requirements of § 231.36, Florida Statutes, F.S.A.⁴ 

With a factual specificity that more than met the Rules' requirements (see note 1, supra), they alleged that each was a competent teacher satisfying all the statutory requirements for a fourth year contract tantamount to tenure.⁵ 

The complaint then went on to charge with like directness that the refusal of the authorities to grant each a fourth year contract was in violation of Florida law, the school's own policies, and, important here, Federal laws and Constitution.⁶  Again exceeding the demands of the Rules, the complaint spelled out both the activities⁷  — participation by each in the Dade County Classroom Teachers' Association, Inc., and energetic advancement by Mrs. Pred in classroom instruction of her courses in literature of the new demands for campus freedom — that were distasteful and the cause⁸  of the rejection of a "continuing contract".

Under the spirit of the Conley⁹  reading of a complaint which diminishes, if not altogether obliterates, the restrictive approach of some of our earlier cases¹⁰  requiring the allegation of "facts" as distinguished from "conclusions" in civil rights cases,¹¹  this complaint is a direct, positive charge that these two teachers, who would otherwise have attained the coveted tenure, were denied the fourth year "continuing contract" solely because of their activities in supporting by word, deed, action and association ideas and lawful movements that were opposed by the State school authorities. That reduces the case to simple but awesome terms: apart from difficulties or deficiency in proof¹²  — in light of the discretion that is essential for school officials to have in teacher selection — may the State constitutionally deny a state-created status because of First Amendment activities of the applicant?

Of course, the stock reflex to this question — there is no "right" to public employment, and here no "right" to a merit-based "continuing contract" — has for over a decade been rejected time and time again. "To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities. * *" Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 555, 76 S. Ct. 637, 639, 100 L. Ed. 692, 698. To draw from the fact that "persons seeking employment in" public schools have "no right to work for the State in the school system on their own terms" and such employment may be "upon * * * reasonable terms laid down by the * * * authorities" the "facile generalization that there is no constitutionally protected right to public employment is to obscure the issue. * * * We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." Wieman v. Updegraff, 1952, 344 U.S. 183, 191, 73 S. Ct. 215, 219, 97 L. Ed. 216. " [T]he Court of Appeals for the Second Circuit correctly said in an earlier stage of this case, `* * * the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.'" Keyishian v. Board of Regents, 1967, 385 U.S. 589, 605-606, 87 S. Ct. 675, 685, 17 L. Ed. 2d 629, 642. And to these pronouncements prior to the Trial Court's dismissal below must be added the Pickering<sup>13</sup>  reiteration, just then fresh off the juridical press. "To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Wieman v. Updegraff, 344 U.S. 183 [73 S. Ct. 215, 97 L. Ed. 216] (1952); Shelton v. Tucker, 364 U.S. 479 [81 S. Ct. 247, 5 L. Ed. 2d 231] (1960); Keyishian v. Board of Regents, 385 U.S. 589 [87 S. Ct. 675, 17 L. Ed. 2d 629] (1967). ` [T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.' Keyishian v. Board of Regents, supra, at 605-606 [87 S. Ct., at 685, 17 L. Ed. 2d at 642]."

The protections of the First Amendment have been given special meaning when teachers have been involved.¹⁴  Simply because teachers are on the public payroll does not make them second-class citizens in regard to their constitutional rights. See Spevack v. Klein, 1967, 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574; Garrity v. New Jersey, 1967, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562. "Our Nation is deeply committed to safeguarding academic freedom * * *." Keyishian v. Board of Regents, 1967, 385 U.S. 589, 603, 87 S. Ct. 675, 683, 17 L. Ed. 2d 629, 640. "To impose any strait-jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation." Id. at 603, 87 S. Ct. at 684, 17 L. Ed. 2d at 641. "`The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, 364 U.S. 479, 487 [81 S. Ct. 247, 251, 5 L. Ed. 2d 231, 236]. The classroom is peculiarly the `marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.' * * *"¹⁵  Id. at 603, 87 S. Ct. at 683, 17 L. Ed. 2d at 641.

Nor does the further implied argument fare any better. In effect the school authorities assert that the teachers were not deprived of their rights, for neither was prevented from speaking, writing, and believing as he chose. If they wished to propagandize, simply do it elsewhere, not as public school teachers. But as Judge Learned Hand said years ago in Bomar v. Keyes, 2 Cir., 1947, 162 F.2d 136, 139. "It would emasculate the [Civil Rights] act * * * to leave without recourse those who were later made the victims of reprisals of which they had not been warned." More than that it would sap the Constitution of its vital force in relation to public employees. It would, in the area of First Amendment rights, be to throw out this Hobson's choice: speak or work. Moreover, the execution of any such policy through discharge or non-reemployment would have both a specific and a general impact. It would, as to the individual concerned, be to cut him off from work and income. But to others the consequence might well be more serious. It would be the warning that others would suffer the same fate so that eventually there would be workers, but not speaking or feeling free to speak, they would be silent workers. And in the teaching community we must recall that "` [t]he threat of sanctions may deter * * * almost as potently as the actual application of sanctions.' N.A.A.C.P. v. Button [1963, 371 U.S. 415, 433, 83 S. Ct. 328, 338, 9 L. Ed. 2d. 405, 418] * * * The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being prescribed." Keyishian v. Board of Regents, supra, 385 U.S. 604, 87 S. Ct. at 684, 17 L. Ed. 2d at 641.

Equally unpersuasive is the related argument that since there is no constitutional right to public employment, school officials only allowed these teachers' contracts to expire, and thus they cannot be liable for a violation of any rights protected by § 1983. But in the posture of this case this misconceives the whole thrust of their claim. The right sought to be vindicated is not a contractual one, nor could it be since no right to reemployment existed. What is at stake is the vindication of constitutional rights — the right not to be punished by the State or to suffer retaliation at its hand because a public employee persists in the exercise of First Amendment rights.

Yet in the face of the strong allegations which must now be credited (see notes 7, 8 supra), this bold position, accepted by the Trial Court, claims the very power purposely to retaliate and discriminate as a punitive, coercive depressant so long as no contractual (or appropriate local statutory) right to employment is violated. But the State may not deny the Constitution, and the Civil Rights Act by its terms makes the state-actor "liable * * * in an action at law" to the victim for the deprivation of any rights * * * secured by the Constitution * * *."

These principles were long ago followed in Bomar v. Keyes, supra — a case very closely in point with the one we face. There the plaintiff was dismissed from her teaching job because she took a month off to serve on a federal jury. She sued under the predecessor of § 1983 for loss of the expectancy of continued employment, an interest which the law will protect. The Court held that plaintiff had stated a claim for relief since she had a right to serve on a jury and the loss of her job had caused pecuniary damage.

Likewise unavailing is any effort to distinguish Bomar on the basis that in that case the teacher's contract was prematurely terminated, while in the present case defendants merely allowed plaintiffs' contracts to expire by their own terms. This again is to dilute the right from a constitutional to a contractual one.¹⁶  Although this analysis extinguishes the principal contentions of the school authorities, as near as we can discern them,¹⁷  we must yet answer the broad question stated above (see text at note 12, supra) — whether state-created status may be denied because of First Amendment activities. And the answer has to be: maybe yes, maybe no.

As Pickering and Tinker, supra, reflect, there are limitations on speech both for teachers and students. Thus, in Pickering the Court remarked "it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests 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 efficiency of the public services it performs through its employees." Pickering v. Board of Education, 1968, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811, 817.

In this balancing only the broadest lines were indicated.¹⁸  But the specifics mentioned by the Court identify factors which are relevant negatively, affirmatively, or both. "The statements [of the teacher] are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant's employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning." Id. at 391 U.S. 569-570, 88 S. Ct. 1735, 20 L. Ed. 2d 818. An accusation that too much money is being spent on some activity is not necessarily per se detrimental to the school's interests for such "an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest." Id. at 391 U.S. 571, 88 S. Ct. 1736, 20 L. Ed. 2d 819. Nor was the Court "* * * presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher's presumed greater access to the real facts." Id. Rather, the Court went on, what was before it "is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally." Id.

Against a sweeping declaration of First Amendment rights to students and teachers¹⁹  the Court acknowledges that it "has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school authorities, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools" so that "problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities." Tinker, supra at 393 U.S. 507, 89 S. Ct. 737, 21 L. Ed. 2d 738. "There is no indication that the work of the school or any class was disrupted. * * * [T]here were no threats or acts of violence on school premises." In "our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Id. at 393 U.S. 508, 89 S. Ct. 737, 21 L. Ed. 2d 738-739. Taking its cue from our decision in Burnside v. Byars, 5 Cir., 1966, 363 F.2d 744 and the obverse result in Blackwell v. Issaquena County Board of Education, 5 Cir., 1966, 363 F.2d 749, the Court summed up the State's burden.

"In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that the exercise of the forbidden right would `materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained. Burnside v. Byars, supra at 749." Tinker, supra at 393 U.S. 509, 89 S. Ct. 738, 21 L. Ed. 2d 739.

"In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress `expressions of feelings with which they do not wish to contend.' Burnside v. Byars, supra, at 749." Id. at 393 U.S. 511, 89 S. Ct. 739, 21 L. Ed. 2d 740.

But the Court makes plain that there must be this balancing. "But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech. Cf. Blackwell v. Issaquena County Bd. of Education, 363 F.2d 749 (C.A. 5th Cir., 1966)." Id. at 393 U.S. 513, 89 S. Ct. 740, 21 L. Ed. 2d 741. And the activities as protected or non-protected First Amendment rights depend on that weighing.²⁰ 

We have emphasized these limitations because they demonstrate why an ascertainment of the real facts — not just what the lawyers say the facts are or amount to — is indispensable in marking the contours of rights so vital, both to the individual and to society in its policy determination of an educated, which is a responsible, citizenry. Without even intimating the acceptable outcome on remand, the two activities for which this claimed discrimination was meted out are quite different. One, relating to the effort to organize teachers for effective action is quite removed from the classroom-schoolhouse variety. The other, involving possible propaganda or agitation within the classroom and the course of instruction, comes much closer to collision with the need for discipline, both within the classroom and within the school as a whole. This may well limit the extent or kind of expression of ideas under the First Amendment's umbrella. This critical differentiation of precise facts will cut across both the merits of the claims and the remedy. For on the facts must rest the determination of whether the denial of a continuing contract was (a) a reprisal for these actions in expression of ideas, thoughts or associations rather than permissible nondiscriminatory professional evaluations and, if so, (b) whether under the circumstances in relation to the reasonable demands of a system of organized responsible learning these actions were protected. On a finding of (a) and (b) the remedy (c) might well also depend on all of the facts. See, Tinker, supra, at 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 742.

So now months later the case goes back to find how much of a case it is for either one or both of these teachers. Whether it gets any place, or how far it will go is beyond prediction now except — as we repeat and repeat and as done so recently in Webb v. Standard Oil Co., 5 Cir., 1969, 414 F.2d 320; and Equity Capital Co. v. Sponder, 5 Cir., 1969, 414 F.2d 317, ___ as the case is recommitted to the superintendence of the Trial Judge without the slightest possible whisper of a suggestion as to how it will or should come out.

Reversed and remanded.