Downs v. Conway School District

• Decision Date: 23 June 1971
• Docket Number: No. LR-70-C-160.,LR-70-C-160.
• Parties: Mildred S. DOWNS v. CONWAY SCHOOL DISTRICT.
• Court: U.S. District Court — Eastern District of Arkansas

328 F. Supp. 338

Mildred S. DOWNS v. CONWAY SCHOOL DISTRICT.

No. LR-70-C-160.

United States District Court, E. D. Arkansas.

June 23, 1971.

Eugene R. Warren, Little Rock, Ark., for plaintiffs.

Phil Stratton, Conway, Ark., W. Christopher Barrier, Little Rock, Ark., for defendant.

OPINION

CLARY, Senior District Judge (Sitting by Special Designation).

Plaintiff here seeks a declaratory judgment, injunctive relief, and damages due to the alleged deprivation, under color of state law, of her rights, privileges, and immunities guaranteed by the 1st and 14th amendments of the United States Constitution. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343(3) (4), 28 U.S.C. §§ 2201-2, and 42 U.S.C. § 1983, as well as under the Constitution of the United States.

The trial of the case having been held, and briefs submitted on the relevant issues of law, it is now ready for disposition.

THE FACTS

1. The plaintiff, Mildred S. Downs, is a qualified professional teacher, having a total experience of 25½ years in the Arkansas Public School System.

2. On or about December 1, 1966, plaintiff entered into a contract with the Conway School Board and was assigned to teach the second grade in the Ellen Smith School.

3. For the years 1967-8 and 1968-9 she was again offered and signed a contract with the School Board to teach in the Ellen Smith Elementary School.

4. During the period encompassed by the 1967-68 school year a water fountain in her room became broken. She reported it to the principal who reported it to Carl White, superintendent of the maintenance department.

5. As the superintendent of maintenance, Carl White found that the fountain, which he thought was a Westinghouse fountain, was under a warranty and that the necessary parts could not be obtained under 10 days to 2 weeks, and so informed Mrs. Downs.

6. Some two to three weeks later, at a time when the temporary water supply (consisting of a plastic bucket and cups) provided by the plaintiff at her own expense for her pupils was exhausted and in need of refilling, and an art class was beginning, the teacher asked the pupils to draw pictures of their neighbors (other pupils) and express in the rough drawings the way that each one of the children of the class felt. The children drew the pictures as requested, and at least some of the pupils drew pictures of pupils lying down asking for water, wilted flowers, etc.

7. Plaintiff testified, without contradiction, that she exhibited some of these drawings to the principal and made no further dissemination thereof. The then principal, James Stone, has no recollection of this episode. I find as a fact that these "cartoons" were actually delivered to the principal. The distribution thereof is uncertain, but Carl White did receive, through the mail, several of the cartoons. He immediately threw the pictures away and none of the so-called "cartoons" were ever seen by Carl Stuart, the superintendent of schools, and the first he heard about the drawings was in October of 1969.

8. Over the period of her employment with the Conway School District the plaintiff had on numerous occasions complained to the principal that the smoke from the open burning incinerator in the center of the playground was seeping into her classroom, particularly when the wind emanated from the north or northeast which blew the smoke and debris from the open incinerator directly at and into her room. The presence of the smoke resulted in bronchial and sinus disturbances to her personally and caused obvious physical discomfort to the members of her class. Complaints about this situation were made both by the plaintiff and her husband directly to the superintendent of schools. Unfortunately the then superintendent of schools was ill and no action was taken by the school superintendent or board to remedy the condition. In addition to the smoke hazard, the plaintiff testified, without contradiction, and the Court finds as a fact, that the burning of the trash in an open incinerator during school hours and recess hours constituted an open and imminent danger to the students of the plaintiff as well as other students in the school. It was testified, without contradiction, that one handicapped child made a habit of trying to ignite branches or sticks with which, after being ignited, he would run after and threaten other pupils in the immediate vicinity. Again it was testified, without contradiction, that the plantiff herein, pursuant to her feeling of obligation, telephoned the mother of the pupil, who thereafter accompanied her child to school and at all times supervised him personally while he was playing in the school yard for the balance of the year. In addition to the smoke and flying debris, the testimony showed beyond peradventure of doubt that the overflow from the incinerator (burned and rusted tin cans, broken bottles, etc.) fell from the incinerator and constituted an obvious hazard to the children playing either basketball or baseball (See EX TT's EX 12 a b c). The testimony also showed that the children were attracted to the burning incinerator, climbed in and around the wall of the incinerator, and that it was only the extended and diligent supervision of the area afforded by the school teachers that prevented any substantial accident to any of the pupils. The evidence is also uncontradicted and shows that both plaintiff and her husband, in an effort to eliminate the whole hazard from the school, offered on several occasions to pay out of their own pockets the cost of trash removal to eliminate the hazard. The then superintendent of schools made no reply to this offer.

9. At the beginning of the 1968-9 session there was furnished, in addition to the open incinerator a barrel-type incinerator with a small smoke stack extruding from the top. The barrel-type incinerator was of limited capacity, and overflowed regularly, making necessary the additional use of the open incinerator which compounded instead of alleviating the problem. Again, in the fall of 1968 this problem was called to the attention of the present superintendent, Carl Stuart, who informed plaintiff and her husband that due to the lack of funds for the purpose he could not arrange to have the trash carried away and that because the district was unable to furnish trash disposal to all of the schools (5 in number) in Conway he could not accept the offer of the Downs to defray the cost and thereby prefer one school over another.

10. There was a committee of mothers of the second grade, comprised of 3 mothers, of which Mrs. William Saunders was Chairman. Her daughter was a pupil in Mrs. Downs class. On 2 or 3 days a week, Mrs. Saunders visited the class, observed its operation and noticed the smoke nuisance and the hazards involved. Without the knowledge of the plaintiff she and the other 2 members of the committee visited the principal and complained of the situation. Thereafter on 3 occasions they called upon the school superintendent and registered their complaints. The only explanation ever given by the superintendent to either the plaintiff, her husband, or the committee of class mothers was that he was working on the problem with the School Board, but that there was nothing he could do about it.

11. Superintendent of Schools, Carl Stuart, at the time of these complaints knew that the incinerator posed a danger to both health and the physical well-being of the students, but took absolutely no steps to eliminate the hazards.

12. In the last week of January of 1970, in the course of and pursuant to a school outline of teaching, a situation arose as follows: The authorized text and materials discussed the relative nutritional value of many foods; included in this material was the information that the nutritional properties of raw carrots exceeded those of cooked carrots. Soon after this a pupil asked whether she might write a letter to the supervisor of the lunch program of the school asking that raw carrots be served at times in place of cooked carrots. A letter of this type asking someone to help or do something to help the writer was an integral part of the suggested teaching of the students at that particular time: Plaintiff's exhibit #9 showed that the workbook (Think and Do) which accompanied their text instructed the writing of this type of letter. The idea of such a letter originated solely in the mind of one second-grade pupil (this will be discussed more fully later). Since it originated solely with the student and fit particularly well into the curriculum, the plaintiff readily acquiesced in the child's request and several letters were drafted, two of which were exhibits 10 and 10-A of plaintiff's exhibits. The plaintiff herself signed the letter upon the request of the students who had also signed the same. A student teacher who was then observing the class as part of her education to become an elementary teacher was present and also signed the letter. The letter, plaintiff's exhibit 10-A, read "Dear Mr. Glenn, The people in my room do not like cooked carrots so will you please serve the school raw carrots? Mrs. Downs Second Grade." The principal of the school, Mr. Parris, testified that he received the letter, or at least a copy thereof, but did not sign it. It was then sent in the mail to Mr. Glenn.

13. The matter came to the attention of the Superintendent of Schools, Carl Stuart and he thereupon brought it to the attention of the plaintiff, charged her with going over his head, violating school policies and for the first time brought to her attention that he took umbrage at the drawings or cartoons of the children which they had drawn during the episode of the broken water fountain. The plaintiff assured him that she had no intention of doing other than following school policies and felt that she had not violated any school policy and certainly had no intention of criticizing Carl White, the superintendent of maintenance with reference to the drawings...