Drake v. Covington County Board of Education

Decision Date23 January 1974
Docket NumberCiv. A. No. 4144-N.
Citation371 F. Supp. 974
PartiesIlena Devone DRAKE, Plaintiff, v. COVINGTON COUNTY BOARD OF EDUCATION et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Solomon S. Seay, Jr., Montgomery, Ala. (Gray, Seay & Langford), Montgomery, Ala., for plaintiff.

Frank J. Tipler, Jr. (Tipler, Fuller & Barnes), Andalusia, Ala., for defendants.

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


RIVES, Circuit Judge:

A teacher in the public schools of Alabama who has contracted and served in the same school system for three consecutive school years attains continuing service status, and has the right to be re-employed each succeeding school year1 unless her contract is cancelled upon some ground provided in another section of the Alabama Code, which will be quoted later.

Plaintiff Drake, an elementary school teacher on continuing service status in the Covington County, Alabama, school system, seeks an injunction requiring the defendants to reinstate her to her former position as a school teacher in that system.

Drake received notice by letter dated April 27, 1973, that the Board of Education of Covington County proposed to cancel her employment contract for "immorality in that the Board has been presented with a physician's certificate stating that you became pregnant during the current school year at which time you were a single unmarried person." This letter informed Drake that she had a right under § 359 of Title 52 to request either a public or private hearing to contest the Board's action. Drake timely requested a private hearing.

A hearing was held before the Board of Education on May 22, 1973. Drake was represented by counsel and record of the proceedings was made. Although the Board's attorney offered the testimony of several witnesses concerning financial matters involving Drake, the Board properly refused to admit this evidence, and accepted testimony from a physician and from Drake herself. The doctor testified that tests indicated that Drake was pregnant. Drake admitted that she had engaged in sexual intercourse with her fiance in private on a number of occasions. Following a meeting of the Board in private session, the Chairman informed Drake that the Board had voted not to renew her contract.

Drake, through her attorney, pursued her statutory right to appeal to the Alabama State Tenure Commission.2 A document dated June 13, 1973, indicates that the Commission met on that date to consider Drake's case. After oral argument and a review of the record, the Commission sustained the validity of the action of the Covington County Board of Education.

Under Alabama law, Drake could have sought review of the action of the State Tenure Commission by petition for mandamus filed in the Circuit Court of Covington County.3 Instead, she filed a complaint in the United States District Court, alleging jurisdiction under 28 U. S.C. § 1331, 28 U.S.C. § 2201, and 28 U. S.C. § 1343 as authorized by 42 U.S.C. § 1983.

The Supreme Court has stated that "it is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492. Also see McNeese v. Board of Education, 1963, 373 U.S. 668, 671-676, 83 S.Ct. 1433, 10 L.Ed.2d 622. These cases indicate that Drake was entitled to choose a federal forum to litigate her constitutional claims.

The applicable section provides as follows:

"§ 358. Grounds for cancellation of employment contract. — Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in number of teaching positions, or other good and just cause; but cancellation may not be made for political or personal reasons."

Tit. 52, Code of Alabama, 1940, Recompiled 1958. Drake claims the immorality provision of this section, which provided the statutory basis for her dismissal, is void for vagueness. She attacks the constitutionality of the statute both on its face and as applied to her. Following the example of the Supreme Court in Pickering v. Board of Education, 1968, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, we consider first her challenge to the statute as applied. We then find it unnecessary to reach her challenge to the statute on its face.4 We hold that the statute was applied in this case in a manner which violated Drake's constitutional right of privacy.

The details of the application of the statute to Drake were not clear at the time of oral argument. A stipulation filed by the parties in response to a request by the Court for further factual information revealed the manner whereby the defendants learned about Drake's claimed immorality:

"Defendant, Murray King, Covington County Superintendent of Education, would testify substantially that on, approximately, March 7, 1973, Mrs. Mary Gilmer, a bookkeeper for Covington County, told him she had heard a rumor that Miss Ilena Drake, an unmarried teacher in the Covington County School System, was a patient in Columbia General Hospital and was pregnant.
"The next day he called Dr. Evers, who runs that hospital, and asked him if it was true and Dr. Evers said it was. Dr. Evers told him that Miss Drake had asked him to do an abortion on her because she would lose her job if she had a baby. Dr. Evers said it had been confirmed by x-rays by two doctors and also the laboratory tests done by a laboratory technician.
"On Friday, March 9, 1973, at approximately 11:00 A.M., Mr. King, accompanied by Mr. Ovid Sanders, Transportation Superintendent for Covington County Schools, visited Miss Drake at her room in the hospital. At that time Mr. King informed Miss Drake that her condition was known and he would have to submit it to the Board of Education whether she did or did not have an abortion.
* * * * * *
"On Monday, March 12, 1973, Miss Drake called him at his office and said she had just been released from the hospital and that she was not pregnant at that time. On that day he (Mr. King) visited Dr. Evers at his office and Dr. Evers told him that he released Miss Drake on Saturday March 10, 1973, and she was still pregnant at that time.
"On Wednesday afternoon, March 21, 1973, Miss Drake visited my (Mr. King's) office. She informed me that she had been to two other doctors and they had told her she was not pregnant. I told her that if she would give me the name of a doctor who would say she was not that would be the end of it. She told me she had been advised not to give me the name of the doctor. She had told me at that time also that Dr. Evers had told her she was two months pregnant and that her fiance had been gone for four months and she could not be less than four months pregnant. Emphasis supplied.
"On one other occasion before March 27, 1973, I again talked with Miss Drake and again told her if she would furnish me the name of the doctor who would say she was not pregnant and he verified this, the matter would be dropped. She again refused to give me the name. Dr. Evers had also given me the certificate which was introduced in evidence at the hearing before the Board.5
"I reported all of the above to the Board of Education at their regular meeting on March 27, 1973, and as far as I know, the members of the Board had no other information concerning this at that time."

Following the clue indicated by the emphasized part of Mr. King's testimony, the attorney for the Board elicited the following testimony on cross-examination of Drake.

"Q. Did you tell him Mr. Murray King, in effect, that the doctor could not be correct, that you were two months pregnant because your fiance had been gone four months?
"A. Right.
"Q. Did you mean by that that you had been having relations with your fiance up until he left?
"A. I don't think that's . . . .
"MR. SEAY Drake's attorney: Answer the question.
"A. Okay. Yes, I'm twenty-eight years old, and I don't think the Board or anybody else can tell me what I can do with my private life.
"Q. Then you do acknowledge that you had sexual relations with this man while you were unmarried and while you were teaching here?
"A. Sure.
"Q. Will you tell us where those relations took place?
"A. Well, I have never been inside of a hotel.
"Q. Where do you recall different times that it took place?
"A. Mostly in his car.
"Q. Have you also had relations with any other man?
"A. No."

(Record pp. 18-19.)

The record and stipulation permit no other conclusion than that all of the evidence upon which the Board based its cancellation of Drake's employment contract had its source in disclosures from her own physician solicited by Superintendent King. The evidence fails to show that Drake consented for her doctor to disclose to the Board her private communications with him.6

In a closely related context, the Supreme Court has recently discussed the constitutional right of privacy:

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have indeed found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S. Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, 389 U. S. 347, 350, 88 S.Ct. 507, 510, 19 L. Ed.2d 576 (1967), Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United

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