Pred v. Board of Public Instruction of Dade County, Fla.

• Decision Date: 09 September 1969
• Docket Number: No. 26576.,26576.
• Citation: 415 F.2d 851
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 851 (1969)

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.

No. 26576.

United States Court of Appeals Fifth Circuit.

September 9, 1969.

Beverly Gurevitz, Tobias Simon, Miami, Fla., for appellants.

Kenneth L. Ryskamp, Miami, Fla., Earl Faircloth, Atty. Gen. of Florida, Tallahassee, Fla., Bolles, Goodwin, Ryskamp & Ware, Miami, Fla., for appellees.

Before JOHN R. BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.

JOHN R. BROWN, Chief Judge:

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. "The 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). `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, 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.' * * *"¹⁵Id. 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 "`the 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...