Russo v. Central Sch. Dist. No. 1, Towns of Rush, etc., NY
| Decision Date | 14 November 1972 |
| Docket Number | Docket 72-1303.,No. 26,26 |
| Citation | 469 F.2d 623 |
| Parties | Mrs. Susan RUSSO, Appellant, v. CENTRAL SCHOOL DISTRICT NO. 1, TOWNS OF RUSH, ET AL., COUNTY OF MONROE, STATE OF NEW YORK, et al., Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
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Richard R. Rowley, Albany, N. Y. (Sneeringer & Rowley, Jeffrey G. Plant, Albany, N. Y., of counsel), for appellant.
William H. Morris, Rochester, N. Y. (Nixon, Hargrave Devans & Doyle, Robert H. Wendt, Rochester, N. Y., of counsel), for appellees.
Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.
Events that occur in small towns sometimes have a way of raising large constitutional questions. Henrietta, New York, a town of approximately 6,500 residents, is the geographic setting of this important case, in which we are asked to decide whether the dismissal of Mrs. Susan Russo, a high school art teacher, for what in the end amounts to a silent refusal to participate in her school's daily flag salute ceremonies, violated her constitutional rights under the First Amendment. As in James v. Board of Education, 461 F.2d 566 (2d Cir. 1972), decided by the Court just a few months ago, we must ascertain, and ultimately assess, the sometimes conflicting interests of the state on the one hand, in maintaining and promoting the discipline necessary to the proper functioning of schools, and the interest of a teacher, on the other, freely to exercise fundamental rights of expression and belief guaranteed by the Bill of Rights. There is, however, more to this case than even that difficult balancing test requires, for we are mindful of the fact that the problems associated with the short-hand phrase, "flag salute," bare a complex of deep emotions, calling into question the meaning of patriotism and loyalty, and the different significance those words have for different people. This case, therefore, is made more difficult for us, "not because the principles of decision are obscure but because the flag involved is our own." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943).
The facts, which we glean from the trial record below, are as follows. Susan Russo was appointed by the Board of Education for the Rush-Henrietta School District, as a probationary art teacher, and assigned, as of September 1, 1969, to the James E. Sperry High School in Henrietta. As a condition of her employment, Mrs. Russo was required by New York Education Law, McKinney's Consol.Laws, c. 16, § 3002 to sign a loyalty oath affirming her support of the Constitution of the United States and of New York State. She signed that oath, without reservation, on August 27, 1969.
In September, 1969, shortly after the school year began, a notice appeared on the school's bulletin board announcing that the "pledge of allegiance" would be recited each day and that "all students and staff members were expected to salute the flag." The practice at the Sperry School was to have the pledge read into the school's intercommunication system by a faculty member or a student. Students and teachers would then stand in their homeroom classes, and recite the pledge along with the voice over the public address system.
Mrs. Russo, in addition to her duties as an art instructor, was assigned to homeroom duty and charged with supervision of between twenty and twenty-five children, ranging from fourteen to sixteen years of age. Mrs. Catherine Adams, a teacher with seven years experience in the Rush-Henrietta school district, was also assigned to supervise the same homeroom, and to exercise senior authority in the classroom.
Although Mrs. Adams saluted the flag and recited the pledge each morning with her class, Mrs. Russo did not. From her first day in school, when it came time to recite the pledge, Mrs. Russo rose and faced the flag, but neither recited the pledge nor saluted the flag. She simply stood at respectful attention, with her hands at her sides. Significantly, there is no evidence in the record indicating that Mrs. Russo ever tried to influence her students to follow her example, and no evidence disclosing even a trace of disruption in the classroom as a result of her action. The students all knew the pledge and, under Mrs. Adams's guidance, recited it each day, without incident. Mrs. Russo's belief, the sincerity of which is unchallenged in these proceedings, was that the phrase "liberty and justice for all" appearing in the pledge, which to most of us represents the spirit and abiding genius of our institutions, in her mind simply did not reflect the quality of life in America today. For this reason, she felt it to be an act of hypocrisy on her part to mouth the words of the pledge when she lacked a belief in either their accuracy or efficacy.
Although Mrs. Russo had not recited the pledge from the start of the school year in September, her action did not come to the attention of school officials until some time in April, 1970. In fact, as late as April 17, 1970, a teacher's report based on actual observation was prepared by James Bennett, an assistant principal at the Sperry school. He evaluated Mrs. Russo's classroom performance as favorable in all respects.1
About that time, in April 1970, certain students and parents reported to the principal, Donald Loughlin, that Mrs. Russo was not saluting the flag. On the morning of April 19, Loughlin entered Mrs. Russo's homeroom class and observed her standing in silence as the pledge was being recited. The following day Mrs. Russo was summoned to Loughlin's office and asked to explain her behavior. Mrs. Russo did so, as we have indicated, adding that her unwillingness to recite the pledge and salute the flag was a matter of personal conscience.
It was hardly coincidence that school officials were informed of Mrs. Russo's behavior in the spring of 1970. During the preceding months the school's flag salute regulations had become a matter of some controversy in Henrietta, and its surrounding towns. A directive of the school Board issued on February 2, reminded school principals that all students were to stand during the pledge. On April 14, the Board reversed itself and announced that students who were unable to participate in the pledge ceremonies because of sincere conscientious belief, would be permitted to remain seated during the pledge if they chose to do so. This Board regulation was the subject of bitter dispute at an open meeting of the school Board. A few days later, on May 1, Principal Loughlin visited Mrs. Russo's class for a second time and observed her activity during the pledge. At a subsequent meeting in his office, Loughlin told Mrs. Russo that he intended to recommend that her probationary appointment not be renewed unless she resigned. Mrs. Russo asked Loughlin for the reasons underlying his decision, but he refused to supply any, stating that he was not compelled to explain his action with respect to a probationary teacher.2 Mrs. Russo refused to resign.
On May 12, Loughlin wrote Superintendent of Schools Richard E. TenHaken, recommending that Mrs. Russo not be reappointed for the coming academic year, and that her employment status be terminated, effective June 30. On the evening of May 12, however, the school board announced new regulations governing student conduct during the pledge. The new regulations modified the policy adopted on April 14 by requiring all students who refused to salute the flag to stand in respectful silence. Finally, at a meeting of the school board, held on June 23, Mrs. Russo was dismissed from service at the Sperry school. No reasons for her dismissal were set forth by the Board. A notice of termination sent to Mrs. Russo by the District Clerk similarly did not provide any statement of the grounds for her dismissal.
This action was brought by Mrs. Russo pursuant to provisions of the Civil Rights Act, 42 U.S.C. § 1983,3 and 28 U.S.C. § 1343,4 alleging that her dismissal for refusing to pledge allegiance to the flag violated her First Amendment rights, and that the Board's failure to state reasons for her dismissal denied her the procedural protections safeguarded by the Due Process Clause of the Fourteenth Amendment. Mrs. Russo seeks reinstatement with back pay, and damages. In view of our decision on the merits of the First Amendment challenge,5 we do not reach Mrs. Russo's Due Process claim.6
As a preliminary matter we are constrained to comment on the cryptic findings filed by the court below. After trial, Judge Burke dismissed Mrs. Russo's complaint on the merits, holding, in a brief series of findings and conclusions unaccompanied by any opinion, that neither First nor Fourteenth Amendment rights were violated in the dismissal of June 30, 1970. Judge Burke recited without explanation that Mrs. Russo's probationary appointment was terminated because of: (1) "her failure to follow school regulations," (2) "her refusal to teach a course in the art department," (3) "her lack of cooperation," (4) "her refusal to participate in the pledge of allegiance," (5) "her failure to perform all her duties," and (6) "her involvement of the student body in her conflict with the school."
Ordinarily, of course, Rule 52, F.R.Civ.P., binds us to accept findings of fact made by the district court unless they are "clearly erroneous." But equally compelling is the demand in Rule 52(a) that "in all actions tried upon the facts without a jury . . . the court shall find the facts specially . . .." The degree of specificity and particularity with which the facts must be found may vary, depending upon the circumstances of each case, see Kelley v. Everglades Drainage District, 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485 (1943). But we must remember that an important function of findings of fact is to aid an appellate court on review, see Advisory Committee Note to Rule 52(a) (1946...
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