Hall v. BOARD OF SCHOOL COM'RS OF MOBILE

• Decision Date: 20 August 1980
• Docket Number: Civ. A. No. 79-0117-P.
• Citation: 496 F. Supp. 697
• Parties: Bobby HALL et al., Plaintiffs, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

496 F. Supp. 697

Bobby HALL et al., Plaintiffs, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., Defendants.

Civ. A. No. 79-0117-P.

United States District Court, S. D. Alabama, S. D.

August 20, 1980.

COPYRIGHT MATERIAL OMITTED

Larry T. Menefee, Mobile, Ala., for plaintiffs.

Robert C. Campbell, III and Frank G. Taylor, Mobile, Ala., for defendants.

OPINION AND ORDER

PITTMAN, Chief Judge.

This cause was tried by the court without a jury.

The action was filed by Bobby Hall, Leona Brent, and Shirley Banks, for themselves and as representatives of a class composed of "all persons who are now, or may in the future be, employed as teachers by defendants," and of a subclass composed of "all members of the principal class who are also members of the Mobile County Education Association (MCEA), and those who may in the future be eligible for membership in that organization."

The defendants are the Board of School Commissioners of Mobile County (Board), Alabama, and the six members of the Board sued in their individual and official capacities.

The plaintiffs attack four policies of the Board, two relating to the distribution of literature on school premises, and two relating to visitors on school premises. They contend that the policies contain vague and subjective standards, and violate the First Amendment on their face, and that the policies are applied in an arbitrary and discriminatory fashion so as to inhibit the plaintiffs' exercise of their First Amendment rights. They contend that the policies are applied to permit some organizations and not others to communicate with and among teachers employed by the defendants, to permit the communication of some ideas and not others, and to prevent the MCEA from communicating among its members, in violation of the Equal Protection clause of the Fourteenth Amendment. The plaintiffs request injunctive and declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, together with attorneys' fees and costs pursuant to 42 U.S.C. § 1988, for the alleged violations of their First and Fourteenth Amendment rights and of 42 U.S.C. § 1983.

In support of these charges, the evidence offered by the plaintiffs consisted of the defendants limiting the: (1) use of school public address systems for announcements; (2) use of mailboxes for dissemination of literature; (3) holding of informal conversations and passing out literature; (4) wearing of "No" buttons; and (5) the inadequacy of administrative appellate review of decisions by principals and superintendents.

FINDINGS OF FACT

The subject matter which is the genesis of this dispute arises out of the admirable goal of the defendants to upgrade student achievement and teacher competency and the understandable concern of job security by the teachers and their professional organization, MCEA, including the implicit fear that black teachers will by reason of racial discrimination bear the brunt of the burden of improvement by termination.

AGREED FACTS

The plaintiffs are teachers employed by the defendants, and are members of the MCEA. Ms. Banks is immediate past president of the MCEA and was president of the organization at the time this action was filed.

Three of the policies which are the subjects of this action, KIA, KIB, and KM, were adopted by the defendants in their present form on June 26, 1974. Policy GBRBB was adopted in its present form on April 13, 1977. On March 5, 1979, the defendants adopted a procedure expanding the prerogatives of staff administrators pursuant to policy GBRBB.

The policies and procedures of the defendants require that anyone wishing to distribute literature or visit a school must first receive written approval from the Deputy Superintendent (Dep. Supt.), formerly described as the Assistant Superintendent for local school administration. Dr. Ed White has served in that capacity during the times relevant to this action. After receiving approval from the Dep. Supt., approval must then be received from each individual school principal.

FINDINGS BY THE COURT

With regard to the maintenance of this action as a class action, the court incorporates by reference the facts discussed in the recommendation of the magistrate of July 31, 1979, and adopted by the court in its order of August 11, 1979. The defendants have "acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole." Fed.R. Civ.P. 23(b)(2).

The Mobile County school system consists of approximately 87 schools, with 87 principals, over 3000 teachers, and 66,000 students. The schools range from elementary to high school levels; among the largest of the schools, Murphy High School serves some 2400 students. The system is governed by the defendant Board, consisting of its president and five members. Through policies promulgated by the Board, the day-to-day operation of the system is carried out by the superintendent, several assistant or deputy superintendents, and at the local level by principals.

I. DISTRIBUTION OF LITERATURE

The two policies relating to the distribution of literature on school campuses are KIA, "Political Campaign Materials," and KIB, "Special Interest Materials." Policy KIA provides:

"All material political or sectarian in nature distributed on any school campus shall have prior approval of the Assistant Superintendent of Administration." (Emphasis added.)

Policy KIB provides:

"Distribution of special interest materials in the local school shall have prior approval of the Assistant Superintendent of Administration." (Emphasis added.)

As noted in the Agreed Facts, these policies were administered by Dr. Ed White, Dep. Supt. The superintendent, Dr. Abe Hammons, also has the implied authority to administer the policies, upon his own motion or upon the request of the Dep. Supt. Although formally control of distribution of materials is centralized in the Dep Supt., in practice the principals exercise discretion in determining what may or may not be distributed on their campuses. There are no written criteria, standards or instructions to guide principals in their decisions; as a result, the evaluation of materials, and the types of materials which are in fact permitted, vary significantly from school to school.¹

The standards applied by the administrators are alike in one respect: they rest expressly upon a consideration of the content of the materials sought to be distributed. For Dr. White, as well as the principals questioned, the content of the materials serves not only to identify materials subject to the policies, but also to make choices among them. Dr. White, charged with primary responsibility for approving materials, said that permission depended on how a point of view might be stated, or why it was stated, and from the perspective of the effect on the teacher, whether it was designed to interfere with daily operations, or to cause distraction or disruption. Dr. White defined "political" materials as those tending to cause confrontation in schools; Principal William Michaels defined "sectarian" material as "biased."

For purposes of identifying materials subject to the policies, differences also appear in the definitions which the supervisor and principals use of the words "political," "sectarian," and "special interest." "Political," for Dr. White and Principal Sousa, includes material expressing a "point of view" or dealing with teacher competency testing. For Principal Michaels, however, an election form for MCEA elections is not political material. Principal Sousa defines "sectarian" to include material from special groups such as religious groups, the KKK, the NAACP, NOW, or the John Birch Society; Principal Michaels defines special interest material as having a "special purpose" or coming from a "specific organization." Dr. White defines special interest material as that coming from persons in business for personal gain, such as advertisements. Deputy Superintendent Larry Newton, who took over Dr. White's duty of approving materials after the period relevant to this action, defines special interest material as that "benefitting a select few." More generally, Principal Michaels would exempt magazines from the policies based on "good common sense"; Principal Sousa would exempt newspapers for the same reason.

One factor prompting this action was the exclusion from many campuses of materials on the subject of teacher competency testing which teachers sought to distribute. This subject has been strongly and bitterly contested since it was first proposed some years ago. The plaintiffs introduced four documents concerning teacher competency testing, two distributed by Board members, and two written by the MCEA.

Plaintiffs' Exhibit 8 is a letter of January 30, 1979, to teachers from Board President Alexander expressing his opinion on teacher competency testing. Mr. Alexander goes on to express a further opinion on the representation of teachers by the MCEA:

"The only official word that is heard from the teachers, comes from the professional organizations. They have steadfastly opposed any kind of testing and have threatened to "sue us morning, noon and night" if any teachers are dismissed. Most of the teachers that I talked to say they do not support this "stonewall" attitude. The problem is, these teachers never attend their organizations' meetings and allow a handful of members to dictate policy.

"For instance, Dr. Hanebuth is able to say he speaks for two thousand teachers and he is able to spend thousands of dollars of membership dues to defend any teacher who is dismissed. If you disagree with the things Dr. Hanebuth is saying and the concept of defending all teachers, then you have a duty to attend the meetings and voice your opposition."

Plaintiffs' Exhibit 10 is a "Position Paper" of February 8, 1979, from Board Member Drago. For the most part the paper is...