Orr v. Thorpe
| Decision Date | 10 June 1970 |
| Docket Number | No. 27674.,27674. |
| Citation | 427 F.2d 1129 |
| Parties | Joseph A. ORR, Jr., individually, etc., et al., Plaintiffs-Appellants, v. A. D. THORPE, Robert R. Johnson, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jon C. Moyle, West Palm Beach, Fla., Glassie, Pewett, Beebe & Shanks, Hershel Shanks, Allan I. Mendelson, Washington, D. C., for appellants.
Howard M. Antevil, Jackson & Jackson, Michael E. Jackson, Palm Beach, Fla., for appellees.
Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.
In this section 1983 case, the district court dismissed the complaint for failure to state a claim upon which relief could be granted.1 We send the case back to that court "for the normal process of development of the facts and the determination of the real merits of the case.". Merlite Land, Sea & Sky, Inc. v. Palm Beach Investment Properties, Inc., 5 Cir., 1970, 426 F.2d 495.
Since the district court dismissed the complaint for failure to state a claim, for purposes of our review we construe the complaint liberally and take the allegations as admitted. Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320, 324. From 1949 until early 1968, the Palm Beach County Board of Public Instruction recognized and dealt with the Palm Beach County Teachers Association (CTA) as the representative of the class-room teachers in Palm Beach County. But during the early part of 1968, a bitter controversy erupted throughout Florida between teachers and the State Board of Education. In Palm Beach, the controversy between CTA and the Palm Beach school board produced a work stoppage and attempted mass resignations. At that point, the Palm Beach school board began to develop its "Professional Affairs Policy, Number 8342.2." In the words of the complaint, the Policy's purpose was "to eliminate Plaintiff CTA and to create an organization of all employees over which the Defendant BPI and its agents have complete control." The Policy carried out this purpose by providing that the school board would hear representations only by individual teachers or by the committees set up by the Policy, not by organizations such as CTA. The complaint alleges instances where school board members acknowledged that the purpose of the Policy was to destroy CTA. Moreover, no longer can CTA members obtain leave, with or without pay, to attend meetings of CTA, the Florida Education Association, or the National Education Association. Before the implementation of the Policy, CTA members received such permission and, according to the complaint, non-CTA members still receive that permission. The school board has now forbidden CTA to perform its customary "in-processing" function of welcoming newly hired teachers, informing them of benefit programs (health insurance, retirement plans, and a credit union), and inviting them to join CTA. Finally, agents of the school board have threatened CTA members with discriminatory treatment and in one case fulfilled their predictions. The Superintendent allegedly told plaintiff Orr when the latter's name was on the promotion agenda that Orr could not be promoted because he was "a leader of an `antagonistic' organization." The allegation continues that when racial unrest was threatened Orr eventually received a position at a lower level than originally contemplated.
Under Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, we cannot escape the conclusion that the plaintiffs have alleged discrimination that could significantly deter freedom of association. It may be that there is adequate explanation and justification for each of these alleged actions, but in this posture of the case we cannot tell. It is equally possible that CTA members are being unnecessarily penalized for their choice of organization. We have no doubt that teachers possess constitutionally protected rights of free association and that section 1983 provides a remedy against state interference. In McLaughlin v. Tilendis, 7 Cir. 1968, 398 F.2d 287,...
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