Gary Whitsel, Plaintiff-appellant, v. Southeast Local School District et al., Defendants-appellees, 484 F.2d 1222 (6th Cir. 1973)

Plaintiff, a continuing-contract teacher in the Southeast Local School District of Ravenna, Ohio, appeals from a judgment determining that he was not discharged because of the exercise of activity protected by the First Amendment and that due process was not offended by the dismissal procedures employed. We affirm.

Gary Whitsel, the possessor of a Bachelor of Science degree and a Master of Arts degree in Sociology and Anthropology from Kent State University, had taught for seven years in the public schools of Ohio prior to his discharge in 1970. The last five were spent in the defendant school system, and in the last two of these years he taught history and a "Great Issues" course at Southeast High School. He was awarded a continuing contract on April 27, 1970, a few weeks before the events that precipitated this litigation.

On Monday, May 4, 1970, Whitsel was the supervisor of a Kent State student teacher named Goldstein, who requested permission to leave Southeast High School before completing his teaching assignments in order to attend an antiwar rally at the Kent State campus. Whitsel granted permission, and Goldstein left without informing the principal or assistant principal and obtaining their approval, as required by established procedures. As events transpired, this was the day the Ohio National Guard was summoned to quell the demonstration on the Kent State campus against the extension of the Vietnam War into Cambodia, and four students were shot to death. Goldstein and another student teacher became tear gas casualties shortly after their arrival on the campus and they retired to a dormitory without observing much of the day's activities.

The two student teachers were summarily dismissed by defendant school board the next day for failure to have secured the approval of their Kent State coordinators and the Southeast principal before leaving the high school. Goldstein informed Whitsel of this action by telephone the same evening.

On May 6, the next day, about forty students gathered at the principal's office as soon as school opened and sought an explanation for the dismissal of the two popular student teachers. The assistant principal directed the group to the gymnasium to await the principal's arrival. When the principal's explanation failed to satisfy them, the students, their numbers now augmented to about four hundred, demanded the presence and explanation of the superintendent of schools. Whitsel left his class to investigate the commotion he had heard and, after advising Goldstein of the student demonstration, joined the assembly in the gymnasium.

The superintendent explained why Goldstein had been dismissed and instructed the students to return to their classes because the assembly was unauthorized. The students did not obey and asked to hear from Whitsel, who addressed them and said that he had given Goldstein permission to leave. He also suggested that there were political implications in the dismissal and that he was familiar with a Supreme Court case reported in a National Education Association periodical that caused him to believe that Goldstein and the other student teacher might have "a case for the American Civil Liberties Union or the Ohio Civil Rights Union." Goldstein, who returned to the school without first reporting to the office as required by regulation, entered the gymnasium to student applause while Whitsel was speaking but departed when he learned that the Sheriff had been called to help terminate the assembly. Other teachers and administrators then spoke to the students, who remained in the gymnasium until the school authorities closed the school for the day and sent them home. The Southeast Local schools remained closed from May 6, 1970, until May 12.

On May 11, the school board convened a private meeting shortly before a special meeting with all teachers of the district. The board members discussed ". . . what was going to be said that afternoon, and what steps we were going to take to make sure there was order, and we could finish the year cooperatively and smoothly." Three teachers who were present at the May 5 assemblage in the gymnasium were identified as coconspirators responsible for the episode: Mr. Galmish, Miss Sterrett, and Mr. Whitsel. Subsequently, the teachers in attendance at the special meeting were advised of the decision to charge these three with responsibility for the unauthorized assembly.

After a month-long investigation, Whitsel was notified by the board of education on June 18, 1970, of its intention to terminate his contract on the grounds of ". . . gross inefficiency and willful and persistent violations of reasonable regulations of the board of education and other good and just cause."¹  He was suspended on September 2, 1970, and was accorded a hearing pursuant to the statutory provision for contract termination. Ohio Rev.Code Sec. 3319.16.²  Whitsel did not demand that the hearing be conducted by a referee,³  and on January 11, 1971, the board terminated his contract for "persistent and willful violations of reasonable regulations of the Southeast Board of Education and other good and just cause."

Whitsel filed a timely appeal in the Court of Common Pleas of Portage County,⁴  but, inexplicably, he later withdrew the suit and initiated this action under 28 U.S.C. §§ 1331, 1343(3), 1343(4), and 42 U.S.C. § 1983. His complaint asserted that the incident of May 6 merely afforded defendants a pretext for terminating his contract and that the true reason was that he had expressed controversial and unpopular opinions and ideas on political, social, and religious subjects. He averred that his termination for these reasons violated his rights to freedom of speech, assembly, association, and religion as guaranteed by the First and Fourteenth Amendments. He also asserted that he had been denied procedural due process in several respects because, inter alia, the notice of the charge against him was inadequate, the findings of wrongdoing were vague and imprecise, and the hearing was unfair because the board was both accuser and trier of fact. Finally, he claimed that he was denied equal protection of the laws because the board had not taken similar disciplinary action against other teachers who participated in the May 6 assembly.

After a nonjury trial on the merits, the district court dismissed the complaint. The court determined that " [t]here is a total absence of evidence bearing upon any personal beliefs, attitudes and religious views of the plaintiff and their acceptance or non-acceptance in the community as a whole, or his activity and participation in the local teachers' association." The court also found that there was evidence supporting the board's dismissal order and that there was no denial of procedural due process. And, it determined that board action against Miss Sterrett, another teacher who participated in the May 6 assembly, and her subsequent resignation refuted the claim of discrimination asserted to constitute a denial of equal protection of the laws.

At the outset, we observe, as did the district court, that an action under the civil rights statutes is not a plenary review of a challenged state administrative procedure. The Ohio statutes afforded Whitsel an appeal to the Common Pleas Court of Portage County, and that court has jurisdiction to review the administrative transcript, to hold additional hearings, to take other evidence, and to grant such relief as may be proper.⁵  Whitsel initiated such an action but, for reasons obscure to us, abandoned it for the more restricted procedures afforded him here. Also, for reasons we are unable to comprehend, as the district court observed, " [a]t the outset of the trial of this cause, plaintiff voluntarily limited the issues to those arising from the events of May 4, 5 and 6, 1970." Accordingly, appellant introduced no evidence of his classroom expression or advocacy of ideas or opinions incompatible with official Southeast Local School District views. The parties stipulated at trial that Whitsel ". . . is an efficient and capable teacher . . . whose teaching record prior to May 6, 1970, discloses no evidence that would support the charges contained in the June 18, 1970 notice of intention to terminate his contract." And the transcript of the dismissal hearing before the board does not contain any evidence of appellant's classroom performance.

Accordingly, we focus, as did the district court, on Whitsel's May 6 activities to determine whether his dismissal was for conduct protected by the First Amendment. He spoke to the assembled students after the principal and superintendent had vainly ordered them to return to their classes. He did not urge them to obey the directions of his superiors. Instead, he told them that there might be political overtones to Goldstein's dismissal and that it might be a proper concern of the American Civil Liberties Union and the Ohio Civil Rights Union. His remarks encouraged disobedience to the directions given to the students by his superiors to return to classes. As a consequence, he was terminated not only for what he said but also for what he did not say. A regulation⁶  required him to assist in quelling a student school disruption. Although he disclaimed specific knowledge of the regulation, it had been adopted in January 1970 and had been posted on the teachers' bulletin board. The notice of intention to terminate his contract charged him with violation of this regulation and the board found him guilty of this infraction. The fact that he made statements that by themselves, in a different context, might have constitutional protection does not insulate him from sanctions for noncompliance with a board regulation.

And, quite apart from the regulation, the statements Whitsel voiced are outside the protection of the First Amendment. Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1967), upon which appellant relies, distinguished a teacher's writing of a letter to the editor from statements made by a teacher that ". . . either impeded the teacher's proper performance of his daily duties in the classroom or . . . interfered with the regular operation of the schools generally." 391 U.S. at 572, 88 S. Ct. at 1737. See Gieringer v. Center School District No. 58, 477 F.2d 1164, 1167 (8th Cir. 1973); see also Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1968). Here, appellant's remarks were not made in his capacity as a concerned citizen but in the capacity of a school teacher during school hours on school property. Also, they were not made during an authorized assembly where the expression of ideas on issues that permitted different views was appropriate. Instead, he spoke at an unauthorized assembly of students on school property after his principal and superintendent had declared the meeting unlawful and urged the insubordinate students to abandon the proscribed gathering and return to classes. His words in this factual context impliedly countermanded the directions of his superiors and, thus construed, went beyond the mere advocacy of ideas and counselled a course of action. And the course of action impliedly counselled was diametrically opposed to the one he should have urged in obedience to the school regulation that he was required to implement and to the action called for by his superiors. Cf. Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973).

We determine that the record supports the holding of the district court that, under these circumstances, Whitsel was not terminated for the advocacy of ideas but for insubordination. Whether the sanction of termination was too severe is a question not properly before us. The statutes of the State of Ohio gave appellant a forum in which to litigate that question as well as other questions concerning the commitment of any infraction and the propriety of any sanction. Whitsel initially pursued that course but later abandoned it. We cannot substitute our judgment for that of the school board so long as the board did not infringe any of appellant's constitutionally protected rights.

We recognize that whenever a violation of First Amendment rights is alleged, the asserted reasons for dismissal must be carefully examined to see if they are mere pretexts for reasons prohibited by the Constitution. However, by stipulating not to consider his pre-May 6 conduct, appellant effectively foreclosed such an inquiry. And, as we have held, a balance must be struck between a claim of First Amendment protection and the need for orderly administration of a school system. Limiting our inquiry to the May 1970 events, we cannot say on this record that there was not lawful, adequate cause for Whitsel's dismissal for violation of a regulation of the board.

Appellant's claim of denial of procedural due process requires less extensive discussion. Whitsel is correct in his contention that his continuing contract could not have been terminated without a hearing in which he would be informed of the grounds for dismissal and be given an opportunity to challenge their sufficiency. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Slochower v. Board of Education, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956). The pertinent Ohio statute specifies the grounds for termination of a continuing contract, requires written notice and time to prepare a defense, and provides the option of requesting a referee to conduct the hearing instead of the school board, a stenographic record, the right of confrontation, the right to counsel, and the right to subpoena witnesses. It also provides for plenary review of an order of termination in the state courts.⁷  Tested by every standard ever enunciated, these rights constitute procedural due process in a contract termination proceeding. See Perry v. Sindermann, supra.

We also determine that appellant's claim that he was denied equal protection of the laws because other teachers who spoke at the assembly were not disciplined was properly decided by the district court. Miss Sterrett and Mr. Galmish, both of whom spoke in implied contradiction of the order to the students to return to class, were the objects of disciplinary procedures but resigned before final action was taken. We therefore find no substance to the claim of invidiously selective prosecution.

There are disquieting overtones to this case. The atmosphere of Southeast High School appears frighteningly oppressive and the board appears excessively authoritarian and vindictive. However, the appropriateness of the policies and practices of the board is not before us. We are restricted to the issues within our jurisdiction as framed by the parties and to the evidence in the record.

The judgment of the district court is affirmed.