Calvin v. Rupp, N 69 C 15.

• Decision Date: 20 October 1971
• Docket Number: No. N 69 C 15.,N 69 C 15.
• Citation: 334 F. Supp. 358
• Parties: Wilmer K. CALVIN, Jr., Plaintiff, v. Roy RUPP, individually and in his capacity as Superintendent of Schools, Brookfield R-III School District, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

334 F. Supp. 358

Wilmer K. CALVIN, Jr., Plaintiff, v. Roy RUPP, individually and in his capacity as Superintendent of Schools, Brookfield R-III School District, et al., Defendants.

No. N 69 C 15.

United States District Court, E. D. Missouri, N. D.

October 20, 1971.

Cook, Murphy, Lance & Mayer, St. Louis, Mo., Smith, Lewis & Rogers, Columbia, Mo., for plaintiff.

Walter E. Allen, Brookfield, Mo., Collins & Grimm, Macon, Mo., for defendants.

MEMORANDUM OPINION AND ORDER

REGAN, District Judge.

Plaintiff, a school teacher, seeks injunctive and monetary relief on his claim that the refusal of the Brookfield R-III School District to reemploy him violated his federally protected rights of free speech and assembly. Our jurisdiction is invoked under Sections 1343, 1331, and 2201, 28 U.S.C.

Plaintiff was employed for the 1968-1969 school year. He taught courses in English, School Publications, Speech and Dramatics, at the Brookfield High School.¹ Under then applicable Missouri law, Section 168.111 R.S.Mo. (since repealed and superseded by the Teacher Tenure Act effective July 1, 1970), each school board is required to "notify each teacher in writing concerning his reemployment or lack thereof on or before the fifteenth day of April in the year in which the contract then in force expires" and its failure to do so constitutes reemployment on the same terms as the existing contract. A teacher who is informed by written notice of his reemployment has fifteen days thereafter in which to accept the employment tendered, and if he fails to accept within the time prescribed he thereby rejects the board's offer. A majority vote of the whole board is required to approve reemployment.

At its regular meeting of March 11, 1969, the six defendant directors constituting the school board of the Brookfield R-III School District acting upon the recommendation of defendant Rupp, Superintendent of Schools, unanimously voted to reemploy all teachers under contract to the district who had not resigned, including plaintiff. Thereafter, individual "Teachers' Reemployment Notices", attested by the President of the Board and its Clerk were prepared and placed in the hands of Superintendent Rupp for delivery to the teachers. As appears infra, plaintiff left the school premises on the morning of March 18, 1969, and did not return until March 25th, having been out of the city in the interim. On March 25, at the conclusion of a meeting with Rupp, plaintiff asked if Rupp had a reemployment notice for him. Thereupon Rupp took the notice out of his pocket and handed it to plaintiff.

On the evening of April 1, 1969, following the school board election earlier that day an organizational meeting of the board was held during the course of which a resolution which had been prepared by Rupp earlier that day with the aid of counsel was presented to and unanimously adopted whereby the board rescinded its March 18, 1969 order respecting plaintiff's reemployment. Following this action, plaintiff was requested to appear before the Board. When he did so he was given a copy of the resolution and informed that he would not be reemployed.²

Basically, plaintiff contends that the failure of the board to rehire him was based (1) on his membership activities in the Community Teacher Association (CTA) and (2) on school administration-imposed censorship of the school newspaper, B-Liner, which interfered with plaintiff's constitutional right to teach journalism as he saw fit. We hold that the weight of the credible evidence does not substantiate plaintiff's claim in either respect.

The Community Teachers Association is a professional organization, the members of which are teachers in the Brookfield School District. Plaintiff belonged to this group. So, too, did defendants Rupp and Crow, the principal of Brookfield High School. The salary schedule in the Brookfield School District was a subject of concern to the CTA. It appointed a committee to seek higher salaries. Plaintiff was not a member of that committee nor did he hold any office in the association. A joint meeting of the school board and the CTA was held on January 30, 1969, at which various members of the CTA, including plaintiff, expressed their individual views. In the course of plaintiff's remarks he used what was later described as "militant" language in that he complained of teachers being at the mercy of the public and said they ought to have the same bargaining rights as teamsters, apparently with the same right to strike. Other speakers more active than plaintiff in the CTA vigorously advocated a revised salary schedule. All these teachers were offered reemployment by the board.

We find that Crow's reservations which he expressed to Rupp about the employment of plaintiff were wholly unrelated to any matters involving the CTA. It was Rupp's feeling after talking to Crow that the problems affecting the relationship between plaintiff and Crow could be worked out, and on this premise, he recommended that the board act favorably as to plaintiff. And that is precisely what the board did on March 11, 1969. Of course, Rupp subsequently changed his mind about plaintiff, but that was so for reasons having nothing to do with plaintiff's CTA activities. In our judgment, neither Rupp's final recommendation of April 1, 1969 nor the action of the board that evening resulted in any degree from any of the activities of the CTA or plaintiff's participation therein.

Plaintiff's further claim that his constitutional rights were violated by reason of the school administration's alleged censorship of the school newspaper is equally without merit. As noted, plaintiff taught various courses one of which was School Publications, a course which plaintiff equated with journalism. He was not, however, certified to teach journalism nor had he had any formal training in journalism prior to the close of the 1968-1969 school year. It appears that as part of their studies in School Publications, the students did all aspects of the work entailed in getting out the school newspaper. Since the actual publication and distribution of the newspaper were not part of the services required of plaintiff in teaching School Publications, he was paid an additional sum of $200 for his extra-curricular services in connection therewith.³ At the beginning of the school year, it was understood that eight issues of the B-Liner would be published, part of the cost to be recovered by advertising paid for on an 8-issue basis. The deficit was borne by the school district. Admittedly, only five issues were actually published, so that refunds to advertisers became necessary.

At its November 14, 1968, meeting the school board had adopted without change a dress code which had been recommended by the elected student council. This fact was not disclosed in the November 21 issue of the B-Liner. However, the following issue of December 19 contained at least six articles (including editorials) and a cartoon pertaining to the dress code. Rupp and Crow expressed the opinion to plaintiff that a disproportionate amount of attention had been given to this one subject, resulting in the omission of other matters of interest to the students. After the publication of the February 13 issue (which contained one article on the dress code), plaintiff met with Rupp and Crow and informed them that the issue to be published February 26 would contain matters relating both to the dress code and to the student council election. At that time, although plaintiff expressly afforded Rupp and Crow an opportunity to inspect and delete any such material if they chose to do so, they told him to go ahead and print the paper, and it was, without any interference on the part of defendants. Up to this point not even plaintiff claims that there was any actual threat of censorship. Work on the next edition of the B-Liner then started, and the evidence shows that it could reasonably have been completed within 10 days or two weeks, but it was never published. Plaintiff alone willed it so. Background facts follow.

On March 12, 1969, plaintiff revealed to Rupp and Crow for the first time information and suspicions he had relating to the possible use and sale of marijuana by students of the Brookfield High School. Much of this information had been known to him for some time. Under school policy, of which plaintiff was admittedly aware, he should have immediately reported matters involving possible misconduct by students to the school administration for their evaluation and action. Instead of doing so, plaintiff contacted the Federal Narcotics Bureau in Kansas City shortly before a scheduled Thanksgiving, 1968 trip to Chicago with members of his School Publications class, and thereafter plaintiff conferred with a narcotics agent the Bureau had sent to the school, all this without the knowledge of the administration. In Chicago one of the students (M-R-) acted in a manner which led plaintiff to believe (but could not verify) that the student had been contacting a source of supply for marijuana. On the same trip, on the basis of circumstantial evidence, plaintiff suspected (but again could not definitively prove) that others of his students had been drinking. Additional information which plaintiff did not report until March 12, were (1) that a named student had told him on March 1 that M-R- was carrying marijuana cigarettes, (2) that since about that date a named student had been going to the darkroom with unusual frequency and had even asked plaintiff for a key to enter the darkroom at night, (3) that plaintiff had detected strange odors in the darkroom which he suspected were due to the smoking of marijuana, and (4) that he had found a note which indicated that its author had been selling marijuana at the school.

After plaintiff belatedly disclosed this information, at the same time demonstrating, in Rupp's opinion, that the school policy of immediate reporting suspected student...