532 F.2d 1120 (7th Cir. 1976), 75-1895, Fern v. Thorp Public School

Docket Nº:75-1895.
Citation:532 F.2d 1120
Party Name:Thomas A. FERN, Plaintiff-Appellee, v. THORP PUBLIC SCHOOL et al., Defendants-Appellants.
Case Date:April 01, 1976
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1120

532 F.2d 1120 (7th Cir. 1976)

Thomas A. FERN, Plaintiff-Appellee,

v.

THORP PUBLIC SCHOOL et al., Defendants-Appellants.

No. 75-1895.

United States Court of Appeals, Seventh Circuit

April 1, 1976

Argued Feb. 26, 1976.

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Griffin G. Dorschel, Eugene O. Gehl, Madison, Wis., for defendants-appellants.

Gregory A. Wilson, Wis. Ed. Ass'n Council, Madison, Wis., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, PELL, Circuit Judge, and STECKLER, District Judge. [*]

PELL, Circuit Judge.

This is an appeal from an order of the district court denying the defendants' motion to vacate a preliminary injunction, the effect of which was to restore the plaintiff to his position as a teacher in the Thorp School District in Wisconsin.

No testimony, either in court or by way of deposition, has been taken thus far in the case; but upon the basis of the verified complaint and affidavits submitted by the parties, the following appears to be fairly established. Thomas A. Fern, the plaintiff, began working in the defendant school district as a teacher with the 1968-69 school year and continued such employment until his induction in the United States Army in January, 1972. Among other duties assigned to him in that branch of the military service, Fern was engaged in providing instructions to new inductees. In connection with his duties, he formulated and distributed to new inductees, male and female, ages ranging from 17 to 40, copies of a survey entitled "Human Sexual Awareness Inventory" (hereinafter HSAI).

Upon his honorable discharge, Fern resumed his teaching position at Thorp in January, 1975. The district court found, and we have no basis for challenging such finding, that but for his discharge in May, 1975, Fern would have been entitled under the laws of Wisconsin to continue employment as a teacher during the 1975-76 school

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year. Upon the resumption of teaching in January, 1975, the plaintiff was assigned a class in "Contemporary Living" in which the students were high school seniors whose ages ranged from 16 to 19. There is no indication as to whether any supervising authority had designated the content of the course or what textual materials, if any, should be used by the instructor. Fern divided the students in the course into three groups and each group was given the opportunity to select a topic it wished first to discuss. One group, consisting of six students, selected the topic "Sex and the New Morality." The record does not indicate whether this was one of several topics made available to the students by Fern or whether the designation was that of the students. Shortly after the selection, Fern distributed copies of HSAI to the group. According to the plaintiff's affidavit the group "requested that your affiant distribute to them copies of (HSAI) that he had distributed while in the military." We can only assume that the students in making the request had been apprised of the document by Fern. Further, according to the affidavit, "the survey was utilized solely to apprise said students of their knowledge or lack thereof in the area of sex education; that said survey played no role in deciding upon the grades the students in Group 1 would receive; that said survey was distributed anonymously and was voluntary and, in fact, was not collected." 1 We do not understand the reference to the anonymous distribution since it must have been apparent to the students that Fern was the source of the material.

The HSAI was in several parts with lines for answers to be inserted as called for in response to the particular material. On the copies appended to the complaint and to plaintiff's affidavit, these answers were filled in, and it would appear to be a fair inference that the material was in that form when distributed to the students. The first part of the material contained line drawings of the lower part of the human anatomies of a male and female and this part called for matching the some fifteen numbered portions of the sexual apparatus with the proper identifying terms. 2 Part two required matching "Socio-Biological" terms with the corresponding "Street Term" of each. Whether any of the so-called street terms were unfamiliar to the students does not appear in the record. The third part of the material consisted of forty true-false questions. In this part, some of the questions as answered on the exhibits as they appear in the record no doubt precipitated the consternation and indignation which eventually developed among the parents and taxpayers in this school district. Thus, although some of the answers merely served to dispel old wives tales, irrespective of societal statistics showing that many high school students are no longer utter strangers to the sexual experience, it is not surprising that a substantial number of parents would be alarmed and become belligerent by reading in material distributed to their children by a teacher that it was false that virginity of the woman is an important factor in determining the success of a marriage. Other answers, while understandably correct if delivered to persons of some sophistication, might appear to support an inference to less urbane persons of approval of what is still regarded in many communities as socially unacceptable deviate practices.

The final part of the material contained twenty statements which were supposed to represent personal opinions. Each statement was followed by numbers 1 through 5 which were to be circled to reflect the following opinions respectively: "Strongly Disagree," "Moderately Disagree," "Neutral," "Moderately Agree," and "Strongly Agree." In each instance on the exhibits in the record one number had been circled;

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however, in the margin of this portion only, there was the following caveat: "Circled Responses are the most liberal viewpoints. No answers are right or wrong!" Irrespective of whether the teacher was intending to indicate any personal viewpoint to the students, the markings indicated strong agreement with the following statements:

"1. Any sexual act between two consenting adults, of opposite sex in privacy is alright.

"6. Promiscuous sexual relations (engaging in sexual relations without any legal or emotional commitment to the other individual) is alright.

"7. Homosexuality should be legalized.

"10. Prostitution should be legalized.

"13. Engaging in sexual relations with more than one person at a time (group sex) is alright.

"15. The exchanging of marital partners for the purpose of sexual intercourse (Wife/Husband swapping) is alright."

Strong disagreement was registered for the statement that premarital intercourse is wrong.

Approximately two weeks after the initial distribution, upon the choosing of new topics by the three groups, the students in Group 3, originally having been nine in number, selected "Sex and the New Morality," and the HSAI was distributed to the members of the group. One day later, February 20, 1975, at a conference with the district administrator and the school principal, plaintiff was informed of their disapproval of the distributed material. It was agreed that the HSAI would not be used again and that Fern was to submit a detailed lesson plan describing the topics which would be discussed in the course during the remainder of the school year, which submission was made promptly with some changes being agreed upon by the three individuals.

During the period of February 28 through March 5, the parents of 31 students withdrew their children from Fern's classes. On March 3, 1975, the district administrator advised the plaintiff that the district administrator had been directed to provide parents of students with copies of the HSAI. The record does not disclose whether the reason for this action arose from the disinclination on the part of the students to share the material voluntarily with their parents. At the same time, the district administrator instructed the plaintiff to discontinue teaching the topic "Sex and the New Morality," with which plaintiff agreed. There was also a meeting that day between Fern, the district administrator, and some parents.

Strong adverse reaction to the use of the material continued to mount on the part of parents. A special meeting of the school board was held on March 4 at which about 325 adults were present, which was an unusually large attendance for such a meeting and required removal of the meeting from the high school to the gymnasium of the elementary school. The discussion concerning Fern's material was lengthy and heated. Demands were made for his discharge. During the meeting two threats were made against Fern, being that he could be gotten with a bullet and that he would be bodily removed from the high school if he continued being there. Also the view was expressed that parents would remove their children from his classes if he remained as a teacher. A woman who indicated that she was a spokesman for many in attendance articulated, according to the school board minutes, six reasons supporting the demand for discharge, including that Fern was engaging in a course of instruction beyond the scope of his employment, submitting to students of both sexes material designed for military personnel, infiltrating the students' minds with gutter language not in keeping with local standards, and impairing morality by undermining parental guidance and direction.

On the following morning a telephone call was made to the high school office stating that plaintiff would be physically removed from the school at noon. On the same morning the local police received a telephone call to the effect that the department did not have sufficient men to prevent

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the plaintiff's removal from the school. Plaintiff was instructed by the district administrator to leave the school...

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