502 F.2d 973 (7th Cir. 1974), 72-1898, Brubaker v. Board of Ed., School Dist. 149, Cook County, Illinois

Docket Nº:72-1898.
Citation:502 F.2d 973
Party Name:Clara S. BRUBAKER et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION, SCHOOL DISTRICT 149, COOK COUNTY, ILLINOIS, a body politicand corporate, et al., Defendants-Appellees.
Case Date:July 31, 1974
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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502 F.2d 973 (7th Cir. 1974)

Clara S. BRUBAKER et al., Plaintiffs-Appellants,



ILLINOIS, a body politicand corporate, et al.,


No. 72-1898.

United States Court of Appeals, Seventh Circuit

July 31, 1974

Heard Sept. 24, 1973.

On Rehearing En Banc Dec. 17, 1974.

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[Copyrighted Material Omitted]

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Allen H. Gerstein, Chicago, Ill., for plaintiffs-appellants.

Mitchell J. Overgaard, Chicago, Ill., for defendants-appellees.

Before KNOCH and O'SULLIVAN, [*] Senior Circuit Judges, and FAIRCHILD, Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

This appeal concerns the discharge by defendant Board of Education of three public school teachers-- plaintiff-appellants-- for distributing or causing to be distributed to their eighth grade pupils allegedly obscene and improper reading materials. Action was brought against the appellees, Board of Education, its members and agents, in the United States District Court for the Northern District of Illinois, Eastern Division. For their cause of action, plaintiffs charged that defendants' action abridged their civil rights secured to them by 42 U.S.C. 1983, and their rights under the First and Fourteenth Amendments. Jurisdiction of the Court was based upon 28 U.S.C. 1332 and 1343(3) and (4). The litigation was concluded in the District Court by an order granting defendant-appellees' motion for summary judgment. From such order, plaintiffs appeal.

We affirm.

Clara S. Brubaker, John W. Brubaker and Ronald K. Sievert were teachers of eighth grade students in public schools operated by the Board of Education of District 149, Cook County, Illinois. They were all non-tenured, and their respective one-year contracts were to expire on June 12, 1970. Prior to the events here involved, the Brubakers had been advised that they would not be rehired, while Sievert had been notified that he would be retained for the 1970-71 school year.

In April, 1970, Clara Brubaker and another teacher, not involved here, attended the movie 'Woodstock' which documented the 1969 rock festival by the same name. A number of relevant brochures were acquired at the theatre. These contained various articles, poems and pictures. One article-- or poem-- entitled 'Getting Together' contained material which brought about the discharge of the plaintiffs. Its total content is set out in the brochure 'Woodstock' a copy of which is made an appendix hereto. Those parts relating to drugs, sexual behavior and what might be called vulgarities are as follows:

'Woodstock felt like home. A place to take acid. A place to make love. Felt a little like a place we'd been before, but hard to remember, like yesterday's vision, like last night's dream. But now it's all now, and it feels like we're never turning back.

Woodstock felt like a swell of energy, wave of elation that fills the heart and flows on over the lover beside you.

Woodstock was freedom. Don't ever forget that. Don't ever settle for less.

On joy overflowing, oh lover caressing, I am what I have to share, oh take me completely.

Grass smoked together. 1

Stink of our shit; Music of Laughter.

Gathering together.

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Bodies naked into the water, touching each other, opening hearts into greater awareness of being together

of living on the planet

of being part of something-- a movement, a motion, like a drop of water in the crest of the tide, moving together we're a big fucking wave . . .. Its only the beginning. Old world crumbling, new world being born.'

As a message to the minds of eighth graders, the brochure's poetry can and probably must be fairly read as an alluring invitation and a beckoning for them to throw off the dull discipline imposed on them by the moral environment of their home life, and in exchange to enter into a new world of love and freedom-- freedom to use acid and grass, freedom to take their clothes off and to get an early start in the use of such vulgarities as 'shit,' 'fucking,' and their companions.

It is probably a fair inference that by second or third year high school most American males have become familiar with, and at times employ, these and like words. Is it only a forlorn hope, however, that most of our young ladies will never employ that kind of speech?

Clara Brubaker, who taught French at various primary grade schools, placed some of these brochures in the teachers' lounges and also gave copies to her husband, John Brubaker, and to Ronald Sievert, allegedly for use in their classes. She did not herself distribute any brochures to students, but did sisplay one of the brochure's posters in her classroom.

Copies of the brochure were then made available to the eighth grade students in John Brubaker's and Ronald Sievert's classes. In due time, these brochures found their way into the homes of some of the students. When parents complained to the principal, appellee John Condon, (especially about the poem 'Getting Together'), appellants were asked by Superintendent James R. Albert whether they had made copies of the brochure available to the students. He was told that appellants had done so, and Albert reported his findings to the appellee Board of Education members at a closed session on April 30, 1970. The next day the Board resolved to dismiss appellants as of May 4, 1970. Each teacher received a letter advising of the Board's adoption of the following Resolution:

'Resolve that (teacher's name) be dismissed as a teacher of the District effective May 4, 1970 for circulating within the schools of the District certain promotional material entitled 'Woodstock' which material is of an obscene and suggestive nature, promotes a viewpoint contrary to the requirements of the laws of the State in regard to teaching about the harmful effects of alcoholic drinks and narcotics, and was distributed contrary to the provisions of policy 3547 of the Policies and By-Laws of School District 149, Cook County, Illinois, prohibiting the distribution within the schools or on school property of any material other than material purchased, procurred or furnished under the initiative and with the approval of the Board of Education of the District for distribution and use in its Educational Program. 2

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'Be It Further Resolved that the secretary of the Board be authorized and directed to prepare a letter to the teacher notifying him (or her) of this action and that the Superintendent be authorized and directed to deliver said letter to the teacher in person as soon as convenient.'

Before the effective date of discharge, an attorney contacted the School District, asking for 'the setting of a hearing date with regard to the charges pursuant to which they (plaintiffs) were dismissed.' This request was reiterated in a letter of May 15, 1970, from a staff attorney for the American Civil Liberties Union to the School District's attorney. The letter concluded:

'I also hereby demand a written bill of particulars, a list of witnesses who may or may not be called to testify on behalf of the school board, and copies of any written statements heretofore made by such witnesses in writing or made orally and committed to writing.'

In this letter, plaintiffs' attorney also observed:

'There is a recent case, Roth v. Board of Regents, decided on March 9, 1970 in the federal court district for the Western District of Wisconsin, which, I am told, summarizes the procedural requirements for dismissal of non-tenured university professors at state institutions. However, I have not had time as yet to track down that opinion. Of course, it is our position that the same procedural due process standards apply to teachers in the public school system as to teachers in the public university system.'

On May 28, 1970, the School District attorney replied that the Board had considered plaintiffs' request but declined to grant such a hearing. No further action was taken, nor address made to the School Board for about a year, and then on April 22, 1971, this lawsuit was started. The District Court decision of Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wisc.1970), referred to in counsel for plaintiffs' letter of May 15, 1970, was then pending on appeal in this Court.

In their complaint, appellants charged that appellees had abridged their First and Fourteenth Amendment freedoms and their civil rights and in addition had breached their contracts and defamed them. Appellants each sought reinstatement, together with an award of back salary and compensatory and punitive damages for willful defamation in the amount of $200,000 each. An award of attorney fees was also sought. 3

The complaint set out that Clara Brubaker had placed a number of the brochures in the teachers' lounges at four of five schools where she taught French, gave a number of copies to plaintiffs John Brubaker and Ronald K. Sievert, and 'display(ed) the poster contained therein (in the brochure) in her classroom.' She made no allegation that the brochure or its contents were in any way relevant to what she was teaching. It was further alleged that plaintiffs John Brubaker and Ronald K. Sievert had placed the brochures on their desks to be available to their students.

Appellants claim that the brochure had relevancy to what was being taught to the eighth grade students. Appellant Sievert said it had relevancy to his

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teaching assignment-- Language Arts-- because under his guidance his class was studying the history of rock music. We are not advised what rock music has to do with Language Arts, but appellant Sievert testified:

'We were to begin a new unit that day, but since we had just finished...

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