Fisher v. Snyder

• Decision Date: 10 August 1972
• Docket Number: No. CV72-L-200.,CV72-L-200.
• Citation: 346 F. Supp. 396
• Parties: Frances FISHER, Plaintiff, v. James SNYDER et al., Defendants.
• Court: U.S. District Court — District of Nebraska

346 F. Supp. 396

Frances FISHER, Plaintiff, v. James SNYDER et al., Defendants.

No. CV72-L-200.

United States District Court, D. Nebraska.

August 10, 1972.

Theodore L. Kessner, Lincoln, Neb., for plaintiff.

Charles Baskins, North Platte, Neb., for defendants.

MEMORANDUM OF DECISION

URBOM, Chief Judge.

Frances Fisher is a schoolteacher whose teaching contract was declared terminated at the close of the contract period, May 19, 1972, because of conduct deemed by her employer to be "unbecoming a teacher."

A complaint under the Civil Rights Act was filed on May 24, 1972. Jurisdiction of this court properly is invoked under 28 U.S.C. § 1343. At the close of a hearing in this court on the plaintiff's motion for a preliminary injunction on May 31, 1972, all counsel stipulated that the case could be considered submitted on its merits. Accordingly, the defendants' request for designation of North Platte, Nebraska, as the place for trial is deemed abandoned.

The facts in this case are not seriously in dispute, although the inferences from them are. Frances Fisher is the holder of a teacher's certificate valid for more than one year, including the year 1972-1973. She was employed by the Board of Education of McPherson County High School District, McPherson County, Nebraska, as a teacher during the two years 1970-1972 in the public high school at Tryon, Nebraska. On April 5, 1972, she received notice that her contract would be terminated on May 19, 1972. On April 10, pursuant to § 79-1254 Nebraska R.R.S.1943, as amended,¹ Mrs. Fisher requested a hearing before the board of education and such a hearing was held on April 19. At a regular meeting of the board of education on May 8, 1972, a resolution was adopted, finding that the contract of Mrs. Fisher should be terminated at the close of the 1972 contract period, May 19, 1972, based on the following findings by the board:

"(a) Frances A. Fish sic is a single woman.

(b) That on several occasions during the current school year men, not related to . . . Frances A. Fisher, stayed in her apartment in Tryon, McPherson County, Nebraska, on several occasions ranging from one night to a period of at least one week, this constitutes conduct unbecoming a teacher.

(c) That there is no evidence to support the reason contained in the notice: `(b) failure to maintain discipline in `classes' which purported clause should be and is hereby dismissed."

A transcript of the hearing before the board of education is in evidence here. If there be any factual justification for the contract termination, it must be found there. From it is learned that Frances Fisher, a divorcee, lives alone in an apartment located in a converted school building at Tryon. A kitchen, a bathroom, a bedroom, and a livingroom comprise the apartment. Mrs. Fisher, whose age is not shown by the record, has one son, who is 26 years of age, is married, and teaches school in the neighboring town of Stapleton, Nebraska. From time to time young ladies, married couples, and young men, who are friends of her son and friends of hers, visited Mrs. Fisher at her apartment and spent varying amounts of time, usually staying overnight. Cliff Rowan, age 27, whose parents live in California, who attends Chadron State College in Chadron, Nebraska, and who is described by Mrs. Fisher as her "son No. 2", visits her each vacation period. Additionally, he stayed a week with Mrs. Fisher in her apartment approximately a month before the hearing. Mrs. Fisher had gained permission of the school superintendent for Rowan to do at Tryon his student observing of teaching for a college course. She introduced Rowan to the students and others, and his visitation was reported in the newspaper. On a previous occasion, about a year before the hearing, Mrs. Brady, an Avon lady and wife of a local minister, called on Mrs. Fisher at about 8:30 on a Saturday morning. Mrs. Brady thought that she got Mrs. Fisher out of bed. Later a young man, Cliff Rowan, emerged from the bedroom and the three sat at the table in the kitchen, talking and drinking coffee. Mrs. Brady did not go all the way into the living room, where a davenport was, and she testified that she did not see any bedding on the davenport. Whether she saw the davenport on that occasion is not revealed.

When viewed most favorably from the position of the board of education and taking every permissible inference from the testimony elicited at the hearing, there is simply no proof of impropriety in Mrs. Fisher's conduct which affected her classroom performance, her relationship with students under her care, or otherwise had any bearing on any interest possessed by the board of education. At most, the evidence may be said to raise a question of Mrs. Fisher's good judgment in her personal affairs, when measured against an undefined standard which someone could suppose exists in a small town in Nebraska. I am constrained to hold that that was not enough to justify termination of the contract.

I.

The due process clause of the Fourteenth Amendment to the Constitution of the United States incorporates the First Amendment, thereby prohibiting every state from "abridging . . . the right of the people peaceably to assemble . . ." DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937). It makes no difference "whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958).

This is not to say that a board of education, as an arm of the state, can never make inquiry into the personal associations of a teacher. "Fitness for teaching depends on a broad range of factors." Beilan v. Board of Public Education, School District of Philadelphia, 357 U.S. 399, 406, 78 S.Ct. 1317, 1322, 2 L. Ed.2d 1414 (1958). But making inquiry is different from using impermissible inferences arising from the inquiry. Compare Beilan v. Board of Public Education, School District of Philadelphia, supra, with Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). The present case is not one of refusal of the teacher to answer an inquiry, but use by the board of education of impermissible inferences arising solely from the fact of association by the teacher with other persons.

That teachers have a right of association has been expressly recognized in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), and the court there declared that the right is "closely allied to freedom of speech and . . . which, like free speech, lies at the foundation of a free society."²

Although most of the cases which have dealt with the constitutional right to freedom of association for teachers have been cases involving membership in organizations, I find no relevant distinction between that type of associational interest and that asserted by Mrs. Fisher. It is to be recalled that nothing more was shown by the evidence before the school board than the mere fact of association itself; there was no permissible inference of immorality. On that point I think the following language from Elfbrandt v. Russell, 384 U.S. 11, 17, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321 (1966), is instructive:

"Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees."

That does not end the controversy, however, because the degree of protection this right of association or assembly is to be given in the face of counter-vailing interests of the board of education must be determined. I shall postpone that discussion until Section III of this memorandum of decision.

II.

Also protected by the due process clause of the Fourteenth Amendment is the right of privacy—the right to be let alone. It emerges from specific guarantees of the First, Third, Fourth, and Fifth Amendments or from the broad Ninth Amendment. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Black v. Cothren, 316 F.Supp. 468 (U.S.D.C.Neb. 1970). In Griswold the Supreme Court in discussing the right of privacy said:

"In NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488, we protected the `freedom to associate and privacy in one's associations, noting that freedom of association was a peripheral First Amendment right . . . In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of `association' that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430-431, 83 S.Ct. 328, 336-337, 9 L.Ed.2d 405. In Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's `association with that Party' was not shown to be `anything more than a political faith in a political party' . . . and was not action of a kind proving bad moral character. . . ."

I conclude that the association of persons within one's home is an activity constitutionally protected within the meaning of the right of privacy.

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