Birdwell v. Hazelwood School District

Decision Date27 December 1972
Docket NumberNo. 71 C 337(4).,71 C 337(4).
PartiesBeauregard BIRDWELL (Teacher in the Hazelwood School District), Plaintiff, v. HAZELWOOD SCHOOL DISTRICT a public body corporate, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri


Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Mo., for plaintiff.

Don O. Russell and Richard O. Funsch, St. Louis, Mo., for defendants.


WANGELIN, Distict Judge.

This action is before the Court for a decision upon the merits following a trial to the Court without a jury.

Plaintiff, a former Hazelwood Senior High School teacher, brought this action against the Board of Education of the Hazelwood School District, St. Louis County, Missouri, the members of the Board individually, and three administrative officers of the Hazelwood School District, alleging violations of 42 U.S.C. §§ 1981 and 1983 seeking reinstatement, back pay, injunctive relief, and, in the alternative, money damages for breach of contract in the amount of $100,000.00 for the alleged violation of plaintiff's constitutional rights of free speech and due process of law. Jurisdiction is founded upon 28 U.S.C. § 1343(3) and (4).

The complaint originally was brought in three counts. Count I alleged that under color of state law plaintiff was dismissed from his teaching position because he informed his students of his opposition to a campus visitation by military recruiters, in violation of his right to free speech as guaranteed by the Fourteenth Amendment to the Constitution of the United States. Count II alleged the denial of a hearing required by the Due Process of law before he was dismissed. Count III alleged that plaintiff was dismissed without being provided with a written statement of reasons and without being given the ninety days' notice required by Section 168.126, RSMo 1969, V.A.M.S. Count III is not based upon an independent jurisdictional allegation.

By order filed November 30, 1971, the Court dismissed Count II for the reason that under applicable state law plaintiff was not entitled to a hearing. However, because of subsequent Eighth Circuit cases treated below the Court has reconsidered the dismissal of Count II.

By amended complaint the Hazelwood School District was substituted as a party defendant in place of the Board of Education.

This action was tried to the Court sitting without a jury on February 28, 1972. The Court being fully apprised of the premises hereby makes the following findings of fact and conclusions of law.


1. During the month of August, 1969, plaintiff applied for a teaching position with the Hazelwood School District. He had been employed as a teacher during the preceding year by Mary Institute, a girls private combined grade school and high school. He left Mary Institute at the suggestion of the school administration following a police incident involving drugs; plaintiff had been arrested but the charge was later dismissed.

2. Under the provisions of a written Teacher's Contract dated September 4, 1969, plaintiff was hired by the Hazelwood School District to teach algebra and geometry to first and second year students for a term of 9½ months for the annual sum of $8,265.00. Plaintiff taught that academic year without incident.

3. Plaintiff's employment by the Hazelwood School District was continued by the execution of a written Probationary Teacher's Contract dated April 9, 1970. This contract was for a term of 9½ months beginning August 31, 1970, at the annual salary of $9,060.00. This contract provided in pertinent part as follows:

3. The Probationary Teacher agrees to enter upon and perform the services of a teacher at the times and places and for the duration of this contract and perform all duties of a teacher faithfully and satisfactorally and as directed by the Board of Education, acting through its designated employees; to comply with and abide by all reasonable rules and regulations promulgated by the Board of Education; and to comply with and abide by all pertinent statutes and laws of the State of Missouri; including but not limited to the provisions of the Missouri Teacher Tenure Act, Section 168.101 to Section 168.116, both inclusive, V.A.M.S., and amendments thereto, which are hereby, by reference, incorporated in and made a part of this contract as though set forth herein at length.
* * * * * *
6. It is hereby mutually agreed by and between the parties hereto that nothing herein contained shall operate or be construed as a waiver of any rights, powers, privileges or duties of either party hereto by or under the Laws of the State of Missouri.

4. A similar written contract dated April 1, 1971, was executed to cover a term of 9½ months beginning September 3, 1971, at an annual salary of $9,305.00. Plaintiff returned this contract to the school.

5. During the 1970-1971 school year plaintiff taught Algebra II at Hazelwood High School, a three year secondary school. In plaintiff's classes were students of all three years.

6. During the Fall term of 1970 the Hazelwood High School administration promulgated an oral policy whereby faculty members who wished to invite visitors or speakers had to apply for administration approval before the visitors or speakers were allowed to come onto the campus. The administration in implementing this policy had been mindful of a previous disruptive incident at another local high school. This policy had been in effect before this time but was republished for emphasis.

7. Plaintiff felt that this visitation policy allowed the school administration to prohibit any visitor suggested by the faculty but allowed the faculty no such control over visitors invited by the administration.

8. During the morning of March 30, 1971, while at school plaintiff heard an announcement that a Reserve Officer Training Corps ("R.O.T.C.") representative would be in the school that day to discuss R.O.T.C. programs with students. Thereafter on that day plaintiff spoke twice in the school hallways with school Principal Lawrence Fuqua about this R.O.T.C. visitation in light of the school's visitation policy. The first of these discussions between plaintiff and Principal Fuqua occurred when plaintiff stopped Fuqua in the hallway and asked who had invited the R.O.T.C. representative. To this question Principal Fuqua answered that he had invited the representative and that the representative was his own son. Plaintiff replied that he did not think that R.O.T.C. had a right to be on campus. Principal Fuqua responded that he believed the R.O.T.C. did have such a right. Principal Fuqua then enquired of plaintiff how he would enjoy being in a country that did not have the benefit of military protection. Principal Fuqua asserted that he would decide who would be allowed on campus.

9. Later that same day plaintiff approached Principal Fuqua near the latter's office to explain that he felt that the students and faculty should decide who comes onto the school campus. Fuqua testified that he responded, "Mr. Birdwell, according to Missouri law the Board of Education is charged with the operation of the schools and they have delegated me as principal to operate the school and it's my responsibility to operate the school in the manner that the Board of Education would like me to and that's my responsibility and mine alone to determine who is on campus and who is not. You are not involved in this and you're not to pursue it any farther."

10. No other incident occurred between plaintiff and Fuqua until May 19, 1971. At the beginning of the second period on that day over the school's public address system the announcement was made that United States Army recruiters would be in the building and students were invited to speak with them. The announcement came at the beginning of the period during the portion of the class period normally set aside for announcements. During this period plaintiff was conducting a class in Algebra II for students of all three school years.

11. Plaintiff was surprised at the announcement and disappointed that there had been no prior discussion among the school administration, the faculty and the student body regarding a consensus on this visitation. Plaintiff testified that he told the class "The majority of you may feel that there is nothing wrong with this at all, and that's perfectly all right for you to feel that way. On the other hand, there may be some among us who may feel rather strongly about it." Plaintiff indicated that before people like this are invited onto the campus there should be a consensus of the students and the faculty in favor of having them. Thereafter, general class discussion of the visit by military personnel ensued and continued during substantially all of the remaining class period. Four students testified that during this class period plaintiff became emotionally excited; one student testified that plaintiff "was upset in a surprised form, but . . . he didn't totally go to the end," indicating to the Court that plaintiff retained some control over his emotional state.

12a. David Palmer, a student in plaintiff's class present during this second period of May 19, then sixteen years of age, testified that plaintiff mentioned to the class that the students at Hazelwood High School were "4000 strong," could get the military personnel off campus if they desired, and that "at Washington University they the students wouldn't tolerate it." Palmer testified, however, that plaintiff did not suggest that the students actually remove the recruiters physically.

b. On that day a student organization distributed apples to the faculty members to show appreciation. Four students, Douglas Stephens, Jim Shannon, Rickie Ferrier, and Timothy Watts testified that plaintiff suggested during that second period class that the students could throw his apple at the recruiters; they further testified that by his comments he implied...

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