CURTIN, Chief Judge.
The plaintiff, a probationary teacher of eleventh grade English at Addison Central High School, was suspended for wearing a black armband to school on November 14, 1969, a Vietnam Moratorium Day. He returned to his teaching duties a few days later, but was again suspended when he wore a black armband to school on another Vietnam Moratorium Day, December 12, 1969. He was dismissed on January 13, 1970 and, on September 23, 1970, the New York State Commissioner of Education upheld James' dismissal.
In the Second Circuit decision of May 24, 1972, Judge Kaufman framed the issue in this case as follows:
461 F.2d at 568.
When the parties appeared before me on plaintiff's motion for summary judgment,
Many of the facts in this case are undisputed by the parties. None of the essential facts which Judge Kaufman gleaned from the papers submitted on the motions was contradicted by the evidence at trial. However, for completeness, the facts revealed at the trial before the court are set forth here.
In 1969 Charles James was employed as an eleventh grade English teacher at Addison High School, a public educational institution located near Elmira, New York. At that time the school was composed of about 1900 students and 100 teachers. Central District No. 1 is primarily a rural school district with students coming from a number of surrounding towns. The Board of Education of the Central School District No. 1, of the Towns of Addison, et al., has control of public education in the Addison School District. In 1969 Robert Andrews, named as a defendant, was President of the Board of Trustees of Central District No. 1. Other members of the Board of Trustees in 1969 were Ralph Vena, Edward Linsler, Walter Mergler, Henry Gettstine, Charles Champlain and Thomas Lyons. Defendant Carl Pillard is, and in 1969 was, the Principal of Addison High School and was responsible for the day-to-day operation of the school. Defendant Edward J. Brown is, and in 1969 was, the District Principal of Central District No. 1 and was the chief executive officer of its school system.
Before teaching at the Addison school, Mr. James had previously taught English at Bainbridge High School in Bainbridge, New York for four years, and at Arturo Toscanini Junior High School in the South Bronx for two years. Prior to teaching English, Mr. James had served as a Methodist minister from 1955 to 1963. Shortly after he ended his affiliation with the Methodist ministry in 1963, he began to attend the Quaker Meetings in the Philadelphia area where he was enrolled at Temple University. In 1967 when he was teaching in the New York area, he often attended the Friends' Meetings in Flushing. He continued his involvement with the Quakers when he moved upstate to Addison and attended the Elmira Meetings on a regular basis.
THE NOVEMBER 14, 1969 ARMBAND INCIDENT
In September 1969 when James began to teach English to eleventh graders, he
James wore one of these armbands on the left arm of his sport coat when he arrived at 8:00 a. m. at the Addison High School for teaching on November 14, 1969. At about 8:10 a. m. Carl Pillard, the principal of the school, entered James' homeroom, appeared to notice James' armband, but did not mention it and advised James to ignore any students who might wear black armbands on that day. From 8:30 a. m. until 8:45 a. m., Mr. James conducted a homeroom session, at which nothing unusual occurred. Following the homeroom, he had a free period from 8:45 a. m. to 9:30 a. m., during which time he saw no students. At the second period, beginning at 9:30 a. m., James taught a poetry lesson to an eleventh grade non-regents English class and again there was no unusual behavior or incident.
When they could not reach an agreement about the armband, Brown suspended James pending Brown's seeking legal counsel and advice of the Board of Education. At trial Brown testified that he conceded that no physical disruption was caused by the armband wearing. He testified: "I would say that the discipline of the school was normal on that occasion." Tr. at 233. He received no student or parent complaints and knew of no interruption in the ordinary classroom day. At trial, however, Brown testified that in his opinion sound educational practice was
On November 15, 1969 the Board of Education met to consider James' conduct, without notifying him of the meeting or giving him an opportunity to explain his position.
THE DECEMBER 12, 1969 ARMBAND INCIDENT
Because James did not consider the armband wearing a political act, when other members of the Quaker Meeting decided to wear black armbands on the December 12, 1969 Moratorium Day James did also. On the 12th, shortly after James arrived in his homeroom, Pillard came in and told him to report to Brown's office. At this time there were no students in the school, but Brown immediately suspended James and he left the building.
In support of their position that the wearing of the armband was a disruptive act, the defendants called Edward Brown, the District Principal of the School System, Dr. Anthony Terino,
In his testimony Principal Edward Brown stated that he believed the act had political connotations regardless of James' motivation. Brown felt that the wearing of the armband was disruptive to the education process and might lead to further disruption among the teachers. No facts were elicited from him to support these opinions. In Brown's opinion, wearing the armband violated the code of ethics because, by doing so, James presented only one point of view on the war to the students. Dr. Terino agreed with Mr. Brown that the wearing of the armband was a form of protest against the war, and that the wearing of the armband presented only one side of an issue. Terino explained that the impact of the armband could not be measured because the reaction is an "internal" one. "The fact that there are no physical protests does not make the wearing of any device that shows one side of a controversial issue, does not justify the use of that device." Tr. at 299. If Dr. Terino were the principal, he would have handled the problem in a different fashion. He would have told James: "If you insist on wearing your armband please take a day's leave of absence and wear it outside the building." Tr. at 314. Although he recognized the fact that teachers throughout the state daily expressed opinions for or against the war policy of the Administration, the wearing of the armband took on special significance in his mind. He stated that it would have a greater impact upon students than the spoken word. He would approve a classroom activity in which the teacher gave his point of view and the students responded, as opposed to wearing the armband without discussion which prevented the students from presenting their viewpoint. He reacted in a different way to slogans; he testified: "A quotation of Peace With Honor doesn't conjure up in my mind as clearly as does the armband one side of a controversial issue." Tr. at 370. In Terino's opinion, if a teacher by outside activities became so well known in the community to become himself a symbol of opposition to war, he could continue to teach in the school as long as he did not express his views there. He then put forth the unremarkable idea that the period of 1969 was one of controversy in America and that physical and other types of disruption had to be prevented in the classroom. He said that the teacher had no right to prevail upon students with his own personal viewpoint without giving students exposure to other sides of the issue and the opportunity to ask questions. Dealing with the armband, he related that any symbol must be viewed within the context of the particular situation,
Tr. at 407.
In his view, the armband James wore symbolized protest of the Vietnam War.
Tr. at 408.
MR. JAMES' CONDUCT IN LIGHT OF THE FIRST AMENDMENT
The wearing of a black armband has been held to be a primary first amendment right akin to "pure speech." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In Tinker, the Supreme Court held that a school cannot bar or penalize students' constitutionally protected right to wear an armband absent "a showing that the students' activities would materially and substantially disrupt the work and discipline of the school." 393 U.S. at 513, 89 S.Ct. at 740.
With respect to a teacher's wearing of an armband, the Second Circuit has stated:
James v. Board of Education of Central Dist. No. 1 et al., 461 F.2d 566, 571 (2d Cir. 1972) (emphasis supplied).
In this case, the defendants have fallen far short of their burden of proving that the interest of discipline or sound education was materially and substantially jeopardized by the events described. At his initial meetings with Mr. James, Mr. Brown was not concerned with disruption in the school, but with receiving phone calls from irate parents. Although defendants' witnesses alluded to disruption, it is apparent that the classroom activity at the Addison High School continued at a serene pace throughout these Moratorium Days and that there was neither actual disruption nor the slightest threat of it. At best any threat of disruption was ephemeral and, in the words of Dr. Terino, "an internal one." The force of the testimony of defendants' witnesses is considerably diluted by their preoccupation with the armband, while refusing to recognize the impact of other symbols. While recognizing that a number of teachers were probably wearing symbols in support of the Administration they nonetheless chose to single out James' act as a violation of the code of ethics. In determining whether the code was violated, however, no attempt
It is not the characterization of an act protected by the first amendment, but its effect on the school environment, which allows the traditionally broad discretion vested in school authorities to evaluate teacher conduct "in light of special characteristics of the school environment." James v. Board of Education, supra; Russo v. Central School District No. 1, Towns of Rush, etc., N. Y., 469 F.2d 623 (2d Cir. 1972). In fact, on the basis of the record this court would be inclined to characterize James' acts as religious, were such a characterization necessary to the resolution of this case.
Nevertheless, what is essential for the defendants to carry their burden of proof is some sort of showing of actual educational or disciplinary disruption. The defendants have not offered any such proof. Testimony about some vague internal disruptions or alleged acts of "poor pedagogy" will not suffice. "[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School District, supra, 393 U.S. at 508, 89 S.Ct. at 737, 21 L. Ed.2d 731. Furthermore, it is evident that only symbols expressing one side of the war issue were deemed to be a prohibited political act.
DAMAGES
Since the Board's action in dismissing Mr. James was constitutionally impermissible, Mr. James is entitled to compensatory damages in the nature of back pay. See, e. g., Connell v. Higginbotham, 305 F.Supp. 445 (D.C.Fla. 1969); aff'd in part, rev'd in part on
The court also holds that this is a proper case for the awarding of costs and attorneys' fees. In Stolberg v. Members of Bd. of Tr. for State Col. of Conn., 474 F.2d 485 (2d Cir. 1973), the plaintiff's teaching contract was not renewed following his mailing fellow faculty members an invitation to participate in a Peace Program concerning the Vietnam War. Judge Mansfield wrote for the Second Circuit:
474 F.2d at 490.
The Clerk is directed to enter judgment in the amount of $20,964.25 in favor of the plaintiff. Costs are to be paid by the defendants. The parties shall attempt to stipulate to reasonable attorney's fees to be paid by defendants. If the amount of attorney's fees cannot be stipulated to within sixty days, the plaintiff may apply, upon notice to the defendants, with a detailed statement of services, for the court to set a reasonable fee.
So ordered.
FootNotes
Q. In the period of November 17th through December 12th, did you receive any complaint from any student or teacher concerning your having worn the armband?
A. No.
(Tr. at 58.)
Charles E. Davis, Superintendent of the Elmira City Schools, intimated that he did not concur in the views of his Addison colleagues in his letter to the suspended Mr. James regarding employment.
Plaintiff's Exhibit 11.
Earnings Applied in Mitigation 1. Substitute teacher, Horseheads Central School — 11/3/70; 11/12/70; 12/8/70 $ 75.00 2. English class, Corning Community College 1/70-5/70 660.00 3. Substitute teaching, Elmira School District — 12/70 (3 days) 84.00 4. Part-time laborer, Werner-Salle 1/70-6/70 (¾ during school) 1,391.25 5. Part-time English teacher, Ithaca College 1/71-5/71 3,000.00 6. Substitute teacher, Horseheads Central School 5/28/71; 6/10/71 60.00 7. Substitute teacher, Horseheads Central School 3/6-3/16/72; 3/20-3/23/72; 4/27/72; 4/28/72; 6/6/72 570.00
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