Nicholson v. Board of Educ. Torrance Unified School Dist.

• Decision Date: 30 July 1982
• Docket Number: No. 79-3824,79-3824
• Citation: 682 F.2d 858
• Parties: 5 Ed. Law Rep. 733 Don Patrick NICHOLSON, Plaintiff-Appellant, v. BOARD OF EDUCATION TORRANCE UNIFIED SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 858

682 F.2d 858

5 Ed. Law Rep. 733

Don Patrick NICHOLSON, Plaintiff-Appellant, v. BOARD OF EDUCATION TORRANCE UNIFIED SCHOOL DISTRICT, et al.,

Defendants-Appellees.

No. 79-3824.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 1981.

Decided July 30, 1982.

Michael D. Simpson, Washington, D. C., for plaintiff-appellant.

Audrey Oliver, Deputy County Counsel, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before TANG and NELSON, Circuit Judges and SPENCER WILLIAMS, ^* District Judge.

SPENCER WILLIAMS, District Judge:

This appeal results from an action filed by plaintiff and appellant Don Patrick Nicholson in which he alleged that his employment as a high school journalism teacher was terminated wrongfully as a result of constitutionally protected action he took as his school's newspaper advisor. The United States District Court for the Central District of California rendered judgment for the defendants on the ground that Nicholson had failed to establish that his rights under the first amendment were infringed. We agree and therefore affirm.

I. FACTS

Appellant, Don Patrick Nicholson, was employed as a probationary teacher of journalism at Torrance High School from September 1968 until termination of his employment in May 1970. During the course of his two years of employment, which included service as the advisor to the school-sponsored newspaper, Nicholson became involved in a series of disputes with school officials regarding publication of certain articles. These articles concerned a number of controversial subjects including a feature story on minority unrest in a local community, an article on police-student relations and a critical commentary on the school's treatment of the fifth amendment rights of students.

In light of the sensitive nature of these articles, the school's principal, Dr. Ahee, informed Nicholson that articles on these limited subjects must be submitted to him before publication to ensure their accuracy. In addition, Dr. Ahee made it clear that he wanted students in the journalism class to adhere to the general ethical standards enunciated by the Rotary International, of which the principal was a member. The standards consisted of the "Four-Way Test" that evaluated expression based on its truth, fairness, good will and benefit.

On several occasions, Nicholson refused to comply with his supervisor's instructions regarding pre-publication review of student-written articles. When articles were presented for review, Dr. Ahee often expressed his disapproval but never denied publication or censored the submitted piece.

At the end of his two year probationary period, Nicholson was informed by the school district that he would not be recommended for reemployment. Appellant sought a hearing before a state administrative officer as provided by California Education Code § 44949(c).

At the hearing on Nicholson's claim, it became clear that the school district had acted on several independent grounds when it refused to grant him tenure. Appellant had a history of failure to comply with record keeping requirements. During his two years at Torrance High School, Nicholson failed to return an interest survey regarding his employment, he failed to complete a required check-out list of materials and he did not submit an identification for school property which resulted in the loss of twenty-eight textbooks.

On other occasions, Nicholson permitted his students to violate school rules and regulations. Appellant often permitted his students to leave class early or even to leave campus entirely in violation of school policies. On one occasion, Nicholson allowed his students to attend a taped television interview in direct violation of the principal's instructions. Another time, appellant permitted a survey to be circulated without prior approval from the administration as was required by school district regulations. After school officials informed him of the violation, Nicholson permitted the survey to continue and published the results in the student newspaper.

Appellant was given a five day hearing in June 1970 at which time he argued that his first amendment rights had been violated. At the conclusion of the proceedings, the hearing officer rendered a decision that the dismissal was justified on several independent grounds including insubordination, failure to obey school rules and failure to cooperate with school officials in his capacity as journalism teacher.

Three years later, Nicholson filed the instant lawsuit contending inter alia that the defendants' refusal to renew his teaching contract was based on actions protected by the first and fourteenth amendments. ¹

The court below tried the case on the factual record from the administrative hearing pursuant to stipulation. The court found that the plaintiff failed to carry his burden of showing that the defendants had violated his rights of free expression and subsequently filed Findings of Fact and Conclusions of Law from which the plaintiff appealed.

II. QUESTIONS PRESENTED

On appeal, the questions presented are whether the trial court's conclusion that the school district's decision was not premised on an impermissible motive is erroneous, whether appellant has a personal first amendment right to encourage publication of controversial articles in the high school newspaper and whether the district court's findings of fact are sufficiently comprehensive so as to allow for meaningful review.

III. DISCUSSION

A decision not to rehire an individual is improper if it is made by reason of that person's exercise of constitutionally protected rights. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977). In cases such as the instant one where the dismissal was based on several grounds, only some of which relate to activity allegedly protected by the Constitution, the plaintiff has the initial burden to show that the press-related activities were constitutionally protected and that these activities played a substantial role in the nonrenewal decision. If the plaintiff meets this burden, the defendant must then demonstrate by a preponderance of the evidence that it would have reached the same decision in the absence of the protected conduct. Id. at 287, 97 S.Ct. at 576.

A. Students' First Amendment Rights

The first question presented by this appeal is whether newspaper writers for a high school publication, and vis-a-vis their faculty advisor, ² have a constitutional right to be free from pre-publication review by the school principal. The district court found that the defendants had no impermissible motive in seeking to terminate plaintiff's employment and therefore necessarily concluded that the rights of the high school students had not been infringed. This court agrees and affirms the trial court's conclusion that the principal's actions did not violate constitutionally protected rights.

It is now well-established that secondary students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). However, these rights are not coextensive with those of adults and may be modified or curtailed by school policies that are reasonably designed to adjust those rights to the needs of the school environment. See Williams v. Spencer, 622 F.2d 1200, 1205 (4th Cir. 1980).

Writers on a high school newspaper do not have an unfettered constitutional right to be free from pre-publication review. In fact, the special characteristics of the high school environment, particularly one involving students in a journalism class that produces a school newspaper, call for supervision and review by school faculty and administrators. Under the precise circumstances of this case administrative review of a small number of sensitive articles for accuracy rather than for possible censorship or official imprimatur does not implicate first amendment rights. ³

In the high school setting, school officials and teachers must be accorded wide latitude over decisions affecting the manner in which they educate students. ⁴ The role of the judiciary in the supervision of public education, therefore, is limited and arises only where the resolution of conflicts in school administration clearly involves constitutional values. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968); Diamond, The First Amendment and Public Schools: The Case Against Judicial Intervention, 59 Tex.L.Rev. 477 (1981).

In the present case, the school possessed a substantial educational interest in teaching young, student writers journalistic skills which stressed accuracy and fairness. While appellant properly stressed the value of a free press, the school principal also was acting within appropriate bounds when he emphasized the concomitant need for a responsible press. When Dr. Ahee informed appellant and his journalism class that certain articles in the school-sponsored newspaper must be reviewed for accuracy, ⁵ he properly exercised his supervisorial authority to read those occasional articles about subjects so sensitive that it would be derelict to accord untrained, adolescent writers absolute freedom from pre-publication review for accuracy.

Accordingly, the lower court properly recognized that the principal's conduct was substantially related to the educational process and that the appellant had not been denied rights guaranteed by the first and fourteenth amendments.

B. Motivating Factors Behind Dismissal

When considering a public employer's motivation for dismissing an employee, the trier of fact must examine the various proffered reasons and determine whether constitutionally protected activities played a substantial role in the decision....