Alabama Education Association v. Wallace

• Decision Date: 22 August 1973
• Docket Number: Civ. A. No. 3869-N.
• Citation: 362 F. Supp. 682
• Parties: ALABAMA EDUCATION ASSOCIATION, a corporation, et al., Plaintiffs, v. George WALLACE, as Governor of the State of Alabama, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

362 F. Supp. 682

ALABAMA EDUCATION ASSOCIATION, a corporation, et al., Plaintiffs, v. George WALLACE, as Governor of the State of Alabama, et al., Defendants.

Civ. A. No. 3869-N.

United States District Court, M. D. Alabama, N. D.

August 22, 1973.

Solomon S. Seay, Jr., Gray, Seay & Langford, Montgomery, Ala., for plaintiffs.

T. W. Thagard, Jr., Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Ala., for defendants.

Before RIVES, Circuit Judge and JOHNSON and VARNER, District Judges.

OPINION AND ORDER

PER CURIAM.

At its Second Special Session in 1971, the Alabama Legislature passed Act No. 3, which thereafter became law on its approval by the Governor on November 22, 1971. According to its preamble, the purpose of the Act was the support, maintenance, and development of public education through annual appropriations for the fiscal years ending September 30, 1972, and September 30, 1973. Teacher pay raises as set out in Section 4 of Act 3 were conditioned as follows:

. . . Said county or city school board shall not pay the aforementioned raise to any teacher who participates in, encourages or condones any mass truancy even for a day, or any extra-curricular demonstration which is not approved by the City, County or State Board of Education and said teacher shall forfeit the aforementioned increase for that particular year. The State Board of Education may review the action of any System, City or County and require the forfeiture and may withhold said amount from appropriation to the said City or County school board and said teacher or may review and direct payment to said teacher.

On January 3, 1972, the Thomasville City Board of Education requested each Thomasville school teacher to indicate that he or she had not engaged in the conduct proscribed by Act No. 3 in order to qualify for the specified pay raises. This request was in the form of a memorandum in which the above-quoted portion of the Act was set out; each teacher was asked to sign and return to the Thomasville City Board of Education his pledge that he had ". . . not participated in, encouraged or condoned any mass truancy from any school in the Thomasville City School System, even for a single day, or any extra-curricular demonstration which was not approved by the City or State Board of Education."

The individual plaintiffs did not sign the memorandum or pledge and consequently did not receive the pay raises specified in Act No. 3. These individual teacher-plaintiffs, either directly or through their representatives, protested their failure to receive the pay raises at a meeting before the Thomasville Board of Education. The Board declined to change its position on withholding the pay raises. This lawsuit followed.

The plaintiffs bring this Section 1983 action¹ against the appropriate state and local school officials, challenging the constitutionality of the forfeiture provisions of Act 3. Plaintiffs seek to have the forfeiture provisions declared facially unconstitutional and the enforcement of the provisions enjoined. Plaintiffs claim that the provisions are violative of due process, are impermissibly vague, and place a prior restraint on the exercise of their First Amendment rights.

PRELIMINARY CONSIDERATIONS

Before reaching the merits of plaintiffs' complaint, there are certain preliminary matters that need discussion.

A. Standing to Sue.

There is no problem in this case with individual plaintiffs' standing to sue. However, there is a serious question whether the plaintiff association has standing to sue in this case. It appears that this case falls somewhere between NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), which held the NAACP had standing to challenge the constitutionality of a statute infringing upon the right of the NAACP and its members to associate for the purpose of assisting persons who seek legal redress for infringement of their rights, and Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), which held that an association lacked standing to seek judicial review where the association asserted no individualized harm to itself or its members. In the present case, plaintiff-association claims that the constitutional rights of its members are infringed by the challenged statute but makes no claim that the association itself suffers injury or that the members' rights sought to be protected are such that they will be compromised if members themselves seek to protect those rights. As a matter of fact, four such members are also plaintiffs and claim to represent the class of teachers affected by the challenged statute. This Court is of the opinion that where constitutional rights are asserted, there must be, absent some special circumstances such as those involved in NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964), an injury to the organization distinct from that to its membership. However, this matter is not a vital consideration to the maintenance of this case since the individual plaintiffs appear to represent the class of persons affected and to be affected by the challenged statute. This Court does not feel that it is proper for the Alabama Education Association, a corporation, to be allowed to participate as a party-plaintiff in this case; rather, its participation in this case will be considered as that of an amicus curiae.

B. Exhaustion of Remedies.

While, as indicated above, on February 19, 1972, the plaintiff-teachers protested their failure to receive the pay raises at a meeting before the Thomasville Board of Education, they have not pursued completely their state administrative or judicial remedies. However, the contention that exhaustion of state remedies is a prerequisite to a federal court's considering on its merits a case seeking relief under Section 1983 is of no validity. See Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) and the cases therein cited. Such a contention was earlier laid to rest by this circuit in Hobbs v. Thompson, 448 F.2d 456, 461 (1971) when Circuit Judge Goldberg, speaking for the Court, wrote:

It is therefore clear that where civil rights are asserted, exhaustion of state remedies has not been held to be a prerequisite to the maintenance of a federal cause of action under section 1983. A fortiori, where the civil rights complaint is framed in terms of facial unconstitutionality, courts have held exhaustion inapplicable since accelerated relief is the essence of the action.

C. The Doctrine of Abstention.

Neither is there any obligation on this Court to abstain. See Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). As will be noted later, this Court concludes that portions of the challenged statute are not fairly subject to an interpretation which will render unnecessary the federal constitutional questions raised. Rather, as in Baggett, the statutory language under scrutiny in this case is subject to an infinite number of meanings.

Abstention is particularly inappropriate where a statute is justifiably attacked on its face as abridging free expression. See Dombrowski, supra. This principle was not vitiated by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). While the court in Younger stated:

Moreover, the existence of a "chilling effect," even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action. Where a statute does not directly abridge free speech, but — while regulating a subject within the State's power — tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so.

This caveat goes to the merits of the case and does not state a ground for abstention.

MERITS

As to that portion of the statute that denies pay raises to teachers who participate in, encourage or condone unapproved extra-curricular demonstration, it should be kept in mind that "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967). Particularly uniform has been the Supreme Court's rejection of restrictions placed on the private speech or associational activities of teachers. See Pickering, supra; Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967); Keyishian, supra; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L. Ed.2d 231 (1960); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L. Ed. 216 (1952). While this Court recognizes that the State of Alabama might have some legitimate interest in the extramural speech and associational activities of its teachers, it appears to us that there is no justification for restricting the right of a teacher to engage in non-partisan advocacy of social or political reform, absent a showing that such activity reflects substantially on his or her performance in class or interferes with the regular operation of the schools. On this point, the Supreme Court in Shelton v. Tucker, supra, 364 U.S. at 488, 81 S.Ct. at 252 wrote:

. . . even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

Thus, even though state and local school officials of Alabama...