JOHN R. BROWN, Chief Judge:
This is another monument to needless waste of lawyer and Judge time and,
Not following these principles, the District Judge, by an unrevealing order that is in no way illumined by the slightest indication of his reasons, dismissed a complaint
The plaintiffs, Etersque and Elenore Pred, were teachers in the mathematics and English departments in the Miami-Dade County Junior College operated by the defendants.
With a factual specificity that more than met the Rules' requirements (see note 1, supra), they alleged that each was a competent teacher satisfying all the statutory requirements for a fourth year contract tantamount to tenure.
The complaint then went on to charge with like directness that the refusal of the authorities to grant each a fourth year contract was in violation of Florida law, the school's own policies, and, important here, Federal laws and Constitution.
Under the spirit of the Conley
Of course, the stock reflex to this question — there is no "right" to public employment, and here no "right" to a merit-based "continuing contract" — has for over a decade been rejected time and time again. "To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities. * *" Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 555, 76 S.Ct. 637, 639, 100 L.Ed. 692, 698. To draw from the fact that "persons seeking employment in" public schools have "no right to work for the State in the school system on their own terms" and such employment may be "upon * * * reasonable terms laid down by the * * * authorities" the "facile generalization that there is no constitutionally protected right to public employment is to obscure the issue. * * * We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." Wieman v. Updegraff, 1952, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216. "[T]he Court of Appeals for the Second Circuit correctly said in an earlier stage of this case, `* * * the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.'" Keyishian v. Board of Regents, 1967, 385 U.S. 589, 605-606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629, 642. And to these pronouncements prior to the Trial Court's dismissal below must be added the Pickering
The protections of the First Amendment have been given special meaning when teachers have been involved.
Nor does the further implied argument fare any better. In effect the school authorities assert that the teachers were not deprived of their rights, for neither was prevented from speaking, writing, and believing as he chose. If they wished to propagandize, simply do it elsewhere, not as public school teachers. But as Judge Learned Hand said years ago in Bomar v. Keyes, 2 Cir., 1947, 162 F.2d 136, 139. "It would emasculate the [Civil Rights] act * * * to leave without recourse those who were later made the victims of reprisals of which they had not been warned." More than that it would sap the Constitution of its vital force in relation to public employees. It would, in the area of First Amendment rights, be to throw out this Hobson's choice: speak or work. Moreover, the execution of any such policy through discharge or non-reemployment would have both a specific and a general impact. It would, as to the individual concerned, be to cut him off from work and income. But to others the consequence might well be more serious. It would be the warning that others would suffer the same fate so that eventually there would be workers, but not speaking or feeling free to speak, they would be silent workers. And in the teaching community we must recall that "`[t]he threat of sanctions may deter * * * almost as potently as the actual application of sanctions.' N.A.A.C.P. v. Button [1963, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d. 405, 418] * * * The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being prescribed." Keyishian v. Board of Regents, supra, 385 U.S. 604, 87 S.Ct. at 684, 17 L.Ed.2d at 641.
Equally unpersuasive is the related argument that since there is no constitutional right to public employment, school officials only allowed these teachers' contracts to expire, and thus they cannot be liable for a violation of any rights protected by § 1983. But in the posture of this case this misconceives the whole thrust of their claim. The right sought to be vindicated is not a contractual one, nor could it be since no right to reemployment existed. What is at stake is the vindication of constitutional rights — the right not to be punished by the State or to suffer retaliation at its hand because a public employee persists in the exercise of First Amendment rights.
Yet in the face of the strong allegations which must now be credited (see notes 7, 8 supra), this bold position, accepted by the Trial Court, claims the very power purposely to retaliate and discriminate as a punitive, coercive depressant so long as no contractual (or appropriate local statutory) right to employment is violated. But the State may not deny the Constitution, and the Civil Rights Act by its terms makes the state-actor "liable * * * in an action at law" to the victim for the deprivation of any rights * * * secured by the Constitution * * *."
These principles were long ago followed in Bomar v. Keyes, supra — a case very closely in point with the one
Likewise unavailing is any effort to distinguish Bomar on the basis that in that case the teacher's contract was prematurely terminated, while in the present case defendants merely allowed plaintiffs' contracts to expire by their own terms. This again is to dilute the right from a constitutional to a contractual one.
As Pickering and Tinker, supra, reflect, there are limitations on speech both for teachers and students. Thus, in Pickering the Court remarked "it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 1968, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817.
In this balancing only the broadest lines were indicated.
Against a sweeping declaration of First Amendment rights to students and teachers
But the Court makes plain that there must be this balancing. "But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech. Cf. Blackwell v. Issaquena County Bd. of Education, 363 F.2d 749 (C.A. 5th Cir., 1966)." Id. at 393 U.S. 513, 89 S.Ct. 740, 21 L.Ed.2d 741. And the activities as protected or non-protected First Amendment rights depend on that weighing.
We have emphasized these limitations because they demonstrate why an ascertainment of the real facts — not just what the lawyers say the facts are or amount to — is indispensable in marking the contours of rights so vital, both to the individual and to society in its policy determination of an educated, which is a responsible, citizenry. Without even intimating the acceptable outcome on remand, the two activities for which this claimed discrimination was meted out are quite different. One, relating to the effort to organize teachers for effective action is quite removed from the classroom-schoolhouse variety. The other, involving possible propaganda or agitation within the classroom and the course of instruction, comes much closer to collision with the need for discipline, both within the classroom and within the school as a whole. This may well limit the extent or kind of expression of ideas under the First Amendment's umbrella. This critical differentiation of precise facts will cut across both the merits of the claims and the remedy. For on the facts must rest the determination of whether the denial of a continuing contract was (a) a reprisal for these actions in expression of ideas, thoughts or associations rather than permissible nondiscriminatory professional evaluations and, if so, (b) whether under the circumstances in relation to the reasonable demands of a system of organized responsible learning these actions were protected. On a finding of (a) and (b) the remedy (c) might well also depend on all of the facts. See, Tinker, supra, at 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed. 2d 742.
Reversed and remanded.
Which one or more or all of the following eleven grounds for the motion induced the order is unknown:
Fla.Stat.Ann. § 231.36 (1969 Supp.).
11. The Plaintiff, ELENORE PRED, has apparently been committed to a course of conduct that encourages students to participate in `the current demand for campus freedoms.' She has had the audacity to discuss these subjects in conjunction with a course on literature and has even mentioned `arbitrary use of authority by College Administration.' These actions by the Plaintiff, ELENORE PRED, have offended the individual administrators who are her superiors, as evidenced by a report to Dr. Ann Ackourney from Mr. George Bergen (her immediate superior) as set forth in a memorandum dated March 30, 1968, a true copy of which is attached hereto and made a part hereof."
12. All of the foregoing expressions on the part of the plaintiffs are anathema to the individual Defendants. It was for these expressions of views and solely for these expressions of views and not for any demonstrated incompetencies as teachers, that the Defendants have refused to rehire the Plaintiffs for the forthcoming school year. It is for these expressions of views and not for any other reasons that the Plaintiffs are now being penalized.
14. The actions of the Defendants are in violation of the laws and Constitutions of the State of Florida and of the United States which prohibits [sic] governmental bodies and personnel from acting in wholly arbitrary, whimsical and capricious fashion; from acting to destroy academic freedom, assembly and expression. At all times pertinent hereto, the Defendants have been acting under color of law pursuant to an authority purportedly vested in them by the Government and laws of the State of Florida."
Tinker, supra at 393 U.S. 506, 89 S.Ct. 736, 21 L.Ed.2d 737.
Tinker, supra at 393 U.S. 514, 89 S.Ct. 741, 21 L.Ed.2d 741.