Gordon v. Warren Consol. Bd. of Educ.

• Decision Date: 20 May 1983
• Docket Number: No. 81-1173,81-1173
• Citation: 706 F.2d 778
• Parties: 11 Ed. Law Rep. 141 Michael GORDON, Gerald Eggen, William Hays, Martha Drury, Pete Kelly, Lisa Churilla, Nancy McLean, Mitchell Koneczny, Lisa Hanson, Michael LaFrance and Karen Priemer, Plaintiffs-Appellants, v. WARREN CONSOLIDATED BOARD OF EDUCATION, Arthur Woodhouse, Superintendent, Jerry Montecillo, Deputy Superintendent, Yvonne GuGel, Assistant Principal, jointly and severally, Defendants- Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 778

706 F.2d 778

11 Ed. Law Rep. 141

Michael GORDON, Gerald Eggen, William Hays, Martha Drury Pete Kelly, Lisa Churilla, Nancy McLean, Mitchell Koneczny, Lisa Hanson, Michael LaFrance and Karen Priemer, Plaintiffs-Appellants, v. WARREN CONSOLIDATED BOARD OF EDUCATION, Arthur Woodhouse Superintendent, Jerry Montecillo, Deputy Superintendent, Yvonne GuGel, Assistant Principal, jointly and severally Defendants- Appellees.

No. 81-1173.

United States Court of Appeals Sixth Circuit.

Argued Oct. 7, 1982.

Decided May 20, 1983.

Richard A. Soble, Goodman, Eden, Millender, Bedrosian, Detroit, Mich., Robert Koory (argued), Connie Schweifler, Detroit, Mich., for plaintiffs-appellants.

Richard U. Mosher (argued), Mosher & Vondale, Bloomfield Hills, Mich., for defendants-appellees.

Before ENGEL and KEITH, Circuit Judges and GIBSON, ^* Senior Circuit Judge.

KEITH, Circuit Judge.

On May 10, 1979, Plaintiff-appellants filed the present action against Warren Michigan public school officials in the United States District Court for the Eastern District of Michigan. Plaintiffs are certain teachers, students and parents of students who attended Cousino High School. During the 1977-78 school year, school officials sought and helped place an undercover policewoman in two classes at Cousino High School. The articulated purpose of the covert operation was to reduce drug trafficking in the school. Plaintiffs, however, contend that impermissible political considerations motivated the placement of the undercover agent. The presence of the undercover policewoman in the classrooms allegedly infringed plaintiffs' First Amendment rights. The subsequent discovery of the covert operations stifled the "open" discussions which had characterized the classrooms, interfered with academic freedom, and stigmatized the teachers and students. On February 3, 1981, the United States Court for the Eastern District of Michigan dismissed the complaint for failure to state a cause of action. We affirm.

I.

On December 2, 1977, the Deputy Superintendent of Warren Consolidated Schools met with members of the Warren Police Department. It was agreed, at the request of the Deputy Superintendent, that a policewoman would enroll at Cousino High School and act as an undercover agent. The purported purpose of the undercover operation was to investigate the involvement of teachers and students in drug trafficking at Cousino High School. The Superintendent of Warren Consolidated Schools approved the project a short time later.

On December 12, 1977, the policewoman enrolled in Cousino High School posing as a transfer student. An assistant principal at the school learned the true identity of the undercover policewoman, but processed the false transcripts which the Deputy Superintendent had prepared.

The policewoman was placed in only two classes, a sociology class and a psychology class. Each of the teachers had "liberal reputations" and were known to run "open" classrooms. The undercover agent confirmed that she was stationed in those particular classrooms because they contained "liberal students and teachers."

The policewoman apparently performed admirably in her role as an undercover agent. She did not, however, discover any evidence of drug sales occurring in the classrooms where she was stationed. In fact, she uncovered no drug sales occurring at the high school. On January 19, 1978, the policewoman requested that the covert operation terminate. On the date the request was made, the undercover agent still had not uncovered a single drug transaction. The operation, however did not terminate immediately. Covert surveillance of the classrooms continued until the end of February.

At the conclusion of the two and one-half month covert surveillance operation only one drug "sale" had occurred. The sale occurred at a student's home, not at the school. The purchase involved a single ounce of marijuana.

On March 2, 1978, certain high school students learned the undercover policewoman's true identity when she appeared at an arraignment. On April 6, 1978, plaintiff teachers learned that a drug surveillance operation had been conducted in their classrooms. When questioned, the assistant principal informed the plaintiff teachers that the Deputy Superintendent knew the details of the covert operation. That same day, the Deputy Superintendent admitted to plaintiff teachers that an undercover agent had been placed in their rooms. During the meeting, the Deputy Superintendent allegedly stated that if he felt it was necessary, he would have another undercover police operation conducted in the school.

News that the sociology and psychology classes at Cousino High School were the target of a covert drug trafficking investigation spread throughout the school and community. Community newspapers reported the event. Disclosure of the investigation allegedly dramatically altered the content and open discussion methodology which had characterized the psychology and sociology classes. Class discussions became stilled, and certain topics were avoided, and students refused to freely express their opinions.

On May 10, 1979 certain teachers, students, and parents of students who attended Cousino High School ¹ filed the present action alleging the Warren Consolidated Board of Education, Assistant Principal of Cousino High School, and the Superintendent and Deputy Superintendent of Warren Consolidated Schools violated their rights under 42 U.S.C. Sec. 1983 and the First and Fourteenth Amendments. Allegedly, the plaintiff teachers political beliefs motivated school officials to place the undercover policewoman in the sociology and psychology classes during the 1977-78 school year. This covert police surveillance and its threatened use in the future allegedly injured the plaintiff sociology and psychology teachers by: 1) violating their right to academic freedom; 2) precipitating a change in their teaching methods; 3) altering the content of teaching materials; 4) interfering with their right of free association; 5) destroying the teacher-student relationship; and 6) damaging their professional reputations and future employment opportunities. Plaintiff students were also damaged by the covert surveillance. The surveillance chilled their speech, interfered with their education, inhibited the pursuit of their daily lives and relationships.

On August 6, 1979, plaintiff teachers filed an amended complaint which alleged that defamatory statements were republished in the presence of students and teachers in retaliation for the maintenance of this lawsuit. The superintendent allegedly maliciously republished letters which indicated that plaintiff teachers were inculcating students with values of unfairness, dishonesty, injustice and untruth. The letters allegedly portrayed plaintiff teachers as "thiefs" or "wholesale robbers of the system".

On February 3, 1981, the district court dismissed the complaint for failure to state a cause of action. The court ruled that the complaint alleged no more than a subjective chilling of First Amendment rights. See Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-2326, 33 L.Ed.2d 154 (1972). Moreover, the mere possibility of improper use of information gained from police surveillance of unlawful activities is not itself actionable. See Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335, 1337 (3d Cir.1975). We agree.

II.

School officials contend that this action is nonjusticiable because plaintiffs merely suffered a "subjective chilling" of their First Amendment rights when the covert police surveillance operation at Cousino High School became public knowledge. School officials rely primarily upon Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) to support their contentions. We agree that Laird is controlling.

In Laird the complaint alleged that the United States Armed Forces intelligence agencies had engaged in the surveillance of lawful and peaceful civilian activity, collected information on political protests which served no legitimate military purpose, and disseminated this information to various military headquarters in the United States. These activities allegedly curtailed plaintiff's First Amendment rights and deprived them of their constitutionally guaranteed right of privacy. The Supreme Court rejected the claims that the intelligence activities had a "chilling effect" upon the exercise of First Amendment rights because plaintiffs were unable to point to any resulting direct injury or immediate threat of harm. The mere existence of a military...