Appeal from the United States District Court for the Western District of Wisconsin - No. 75 C 211 JAMES E. DOYLE, Judge.
Fairchild, Chief Judge, Pell, Circuit Judge, and Steckler, District Judge. Fairchild, Chief Judge,*fn* dissenting.
This is an appeal from an order of the district court denying the defendants' motion to vacate a preliminary injunction, the effect of which was to restore the plaintiff to his position as a teacher in the Thorp School District in Wisconsin.
No testimony, either in court or by way of deposition, has been taken thus far in the case; but upon the basis of the verified complaint and affidavits submitted by the parties, the following appears to be fairly established. Thomas A. Fern, the plaintiff, began working in the defendant school district as a teacher with the 1968-69 school year and continued such employment until his induction in the United States Army in January, 1972. Among other duties assigned to him in that branch of the military service, Fern was engaged in providing instructions to new inductees. In connection with his duties, he formulated and distributed to new inductees, male and female, ages ranging from 17 to 40, copies of a survey entitled "Human Sexual Awareness Inventory" (hereinafter HSAI).
Upon his honorable discharge, Fern resumed his teaching position at Thorp in January, 1975. The district court found, and we have no basis for challenging such finding, that but for his discharge in May, 1975, Fern would have been entitled under the laws of Wisconsin to continue employment as a teacher during the 1975-76 school year. Upon the resumption of teaching in January, 1975, the plaintiff was assigned a class in "Contemporary Living" in which the students were high school seniors whose ages ranged from 16 to 19. There is no indication as to whether any supervising authority had designated the content of the course or what textual materials, if any, should be used by the instructor. Fern divided the students in the course into three groups and each group was given the opportunity to select a topic it wished first to discuss. One group, consisting of six students, selected the topic "Sex and the New Morality." The record does not indicate whether this was one of several topics made available to the students by Fern or whether the designation was that of the students. Shortly after the selection, Fern distributed copies of HSAI to the group. According to the plaintiff's affidavit the group "requested that your affiant distribute to them copies of [HSAI] that he had distributed while in the military." We can only assume that the students in making the request had been apprised of the document by Fern. Further, according to the affidavit, "the survey was utilized solely to apprise said students of their knowledge or lack thereof in the area of sex education; that said survey played no role in deciding upon the grades the students in Group 1 would receive; that said survey was distributed anonymously and was voluntary and, in fact, was not collected."*fn1 We do not understand the reference to the anonymous distribution since it must have been apparent to the students that Fern was the source of the material.
The HSAI was in several parts with lines for answers to be inserted as called for in response to the particular material. On the copies appended to the complaint and to plaintiff's affidavit, these answers were filled in, and it would appear to be a fair inference that the material was in that form when distributed to the students. The first part of the material contained line drawings of the lower part of the human anatomies of a male and female and this part called for matching the some fifteen numbered portions of the sexual apparatus with the proper identifying terms.*fn2 Part two required matching "Socio-Biological" terms with the corresponding "Street Term" of each. Whether any of the so-called street terms were unfamiliar to the students does not appear in the record. The third part of the material consisted of forty true-false questions. In this part, some of the questions as answered on the exhibits as they appear in the record no doubt precipitated the consternation and indignation which eventually developed among the parents and taxpayers in this school district. Thus, although some of the answers merely served to dispel old wives tales, irrespective of societal statistics showing that many high school students are no longer utter strangers to the sexual experience, it is not surprising that a substantial number of parents would be alarmed and become belligerent by reading in material distributed to their children by a teacher that it was false that virginity of the woman is an important factor in determining the success of a marriage. Other answers, while understandably correct if delivered to persons of some sophistication, might appear to support an inference to less urbane persons of approval of what is still regarded in many communities as socially unacceptable deviate practices.
The final part of the material contained twenty statements which were supposed to represent personal opinions. Each statement was followed by numbers 1 through 5 which were to be circled to reflect the following opinions respectively: "Strongly Disagree," "Moderately Disagree," "Neutral," "Moderately Agree," and "Strongly Agree." In each instance on the exhibits in the record one number had been circled; however, in the margin of this portion only, there was the following caveat: "Circled Responses are the most liberal viewpoints. No answers are right or wrong!" Irrespective of whether the teacher was intending to indicate any personal viewpoint to the students, the markings indicated strong agreement with the following statements:
"1. Any sexual act between two consenting adults, of opposite sex in privacy is alright.
"6. Promiscuous sexual relations (engaging in sexual relations without any legal or emotional commitment to the other individual) is alright.
"7. Homosexuality should be legalized.
"10. Prostitution should be legalized.
"13. Engaging in sexual relations with more than one person at a time (group sex) is alright.
"15. The exchanging of marital partners for the purpose of sexual intercourse (Wife/Husband swapping) is alright."
Strong disagreement was registered for the statement that premarital intercourse is wrong.
Approximately two weeks after the initial distribution, upon the choosing of new topics by the three groups, the students in Group 3, originally having been nine in number, selected "Sex and the New Morality," and the HSAI was distributed to the members of the group. One day later, February 20, 1975, at a conference with the district administrator and the school principal, plaintiff was informed of their disapproval of the distributed material. It was agreed that the HSAI would not be used again and that Fern was to submit a detailed lesson plan describing the topics which would be discussed in the course during the remainder of the school year, which submission was made promptly with some changes being agreed upon by the three individuals.
During the period of February 28 through March 5, the parents of 31 students withdrew their children from Fern's classes. On March 3, 1975, the district administrator advised the plaintiff that the district administrator had been directed to provide parents of students with copies of the HSAI. The record does not disclose whether the reason for this action arose from the disinclination on the part of the students to share the material voluntarily with their parents. At the same time, the district administrator instructed the plaintiff to discontinue teaching the topic "Sex and the New Morality," with which plaintiff agreed. There was also a meeting that day between Fern, the district administrator, and some parents.
Strong adverse reaction to the use of the material continued to mount on the part of parents. A special meeting of the school board was held on March 4 at which about 325 adults were present, which was an unusually large attendance for such a meeting and required removal of the meeting from the high school to the gymnasium of the elementary school. The discussion concerning Fern's material was lengthy and heated. Demands were made for his discharge. During the meeting two threats were made against Fern, being that he could be gotten with a bullet and that he would be bodily removed from the high school if he continued being there. Also the view was expressed that parents would remove their children from his classes if he remained as a teacher. A woman who indicated that she was a spokesman for many in attendance articulated, according to the school board minutes, six reasons supporting the demand for discharge, including that Fern was engaging in a course of instruction beyond the scope of his employment, submitting to students of both sexes material designed for military personnel, infiltrating the students' minds with gutter language not in keeping with local standards, and impairing morality by undermining parental guidance and direction.
On the following morning a telephone call was made to the high school office stating that plaintiff would be physically removed from the school at noon. On the same morning the local police received a telephone call to the effect that the department did not have sufficient men to prevent the plaintiff's removal from the school. Plaintiff was instructed by the district administrator to leave the school and return to his home which he did. On the same day Fern wrote the district administrator that he was aware that the school board was meeting that evening to consider what course of action, if any, should be taken in response to statements made at the board meeting on the previous evening. The letter continued that if the board determined that a clear and present danger "exists to the health and safety of students, faculty and myself because of events now occurring in the community," he should be temporarily relieved with pay of all duties until March 11, 1975.*fn3 The letter indicated that the proposal was in no way to be construed as a belief on the part of the writer that he was guilty of any wrongdoing in the matter and that if there were any questions concerning the matter contact should be made with his representative*fn4 at Wausau, Wisconsin. At its executive session that evening, the school board unanimously relieved Fern of all duties, with pay, "as it appeared there is a clear and present danger to the health and safety of Mr. Fern and possible danger to others." This situation was to continue in effect until the board made a final decision.
By a letter dated April 11, 1975, plaintiff was notified by the board that he was temporarily relieved of his duties for the balance of the 1974-75 contract without base and fringe benefit pay (exclusive of fringe benefit hospitalization insurance premiums) until his matter had been resolved. The letter also informed Fern that if reinstatement would result with an order for back pay, the same would be provided. The plaintiff was also notified by the letter that his discharge was to be considered, and a procedure was outlined whereby he could, upon request, obtain a statement of the reasons for the board's consideration of possible discharge and have a hearing by an independent hearing officer on the question of discharge. The procedures for the hearing were to be established by the hearing officer and admissibility of evidence offered by the board and the teacher would be governed by the provisions of the Administrative Procedure and Review statute of Wisconsin, Section 227.10. The hearing would be closed unless Fern requested an open hearing. The hearing officer would be required to submit in writing to the board and Fern his recommended findings of fact and recommended decision based on the hearing record. It is to be noted at this point that at all material times in this litigation, Fern has been represented by counsel whose address is given as the Wisconsin Education Association Council. The copy of the HSAI attached to plaintiff's complaint and affidavit reflects a file mark reading "Received Mar 10 1975 WEAC Legal." A copy of the board letter of April 11 similarly attached to the complaint and affidavit reflects: "Received Apr 14 1975 WEAC Legal." The plaintiff made no request for a statement of reasons or for a hearing within the ten-day period provided for in the April 11 letter.
On May 9, 1975, the plaintiff received a notice dated May 6 from the board which stated that the board had found that "the presentation and use of the survey 'Human Sexual Awareness Inventory' has caused and will continue to cause disruption and impairment of school discipline and significant danger of harm to the students, school employees and yourself." The plaintiff was further notified that he was discharged from employment for the balance of the 1974-75 contract year, commencing from receipt of the notice.
The complaint and motion for preliminary injunction were filed on May 12, 1975. A non-evidentiary hearing on the motion was held on June 17, 1975. The district court's opinion and order were issued two days later enjoining the defendants from giving any further effect to the decision of May 6, 1975.
In his motion for a preliminary injunction, Fern claimed entitlement to be free from any act "which would tend to interfere with, coerce or restrain the Plaintiff Thomas A. Fern, in the exercise of his Constitutional right to speak freely." The principal thrust of his supporting affidavit was that the action taken against him "tends to chill and impede his free exercise of expression." The district court in its opinion, however, was not persuaded that the plaintiff's chance for ultimate success on his First Amendment academic freedom contention was sufficiently good to support a preliminary injunction. Deferring for the moment a detailed analysis of the balance of the district court's opinion, it suffices at the present point only to note that the preliminary injunction was granted on the basis that there was indicated a sufficient likelihood of Fern ultimately prevailing to justify the injunction, despite the disruption occasioned by his conduct, under the circumstances here found by the court, "when the teacher has had no advance warning that the conduct was impermissible and when the conduct was not of such a nature that its impermissibility should have been clear to the teacher even in the absence of a warning." This was based upon the claim of a violation of due process under the Fourteenth Amendment. Although not so characterized in the district court's opinion, it appears that the court contemplated a violation of substantive rather than procedural due process rights.
The court also stated that the order was being entered without prejudice to a motion by the defendants to vacate or modify it. In such an event a hearing would be promptly granted, at which the court "would expect defendants to concentrate on an attempt to show that plaintiff's presence in the school as a teacher in 1975-76 can reasonably be expected to produce significant disruption of the school's function."
Whether because of this implied invitation, because of school being in a vacation period, or because of other factors presumably satisfactory to the defendants, an appeal was not taken from the granting of the injunction. Instead, on August 12, 1975, the defendants moved to vacate the preliminary injunction "on the ground that the plaintiff's presence in the Thorp Public School as a teacher in 1975-76 can be expected to produce significant disruption of the school's function." Three supporting affidavits accompanied by numerous documentary exhibits were filed on behalf of the defendants, those being the affidavits of the attorney for the defendants, the chief of the police, and the district school administrator. As summarized by the plaintiff in his brief in this court, the affidavits "arguably tended to show that should Fern be allowed to remain in the school, certain parents would initiate picketing; Fern's continued presence in school will necessitate the presence of police in the school; Fern will be harassed; Fern will be threatened; and that Fern will be the victim of certain acts of violence by certain members of the Thorp community."
In fact, the affidavits were significantly more specific and factual. In the case of the district administrator's affidavit after reciting facts concerning the greatly increased attendance of taxpayers at board meetings, the letters from parents threatening withdrawal, the arrangements for the presence of police, and the continued objections of the community as specifically manifested, the affidavit projected the reasonably expectable situation during the coming school year as follows:
"a) Thomas Fern will be harassed on his drive to and from Chippewa Falls, such harassment manifesting itself in the form of attempts to run Fern off the road;
b) Fern will receive threatening phone calls and letters;
c) More parents will demand, by means of letters, calls or personal visits, the withdrawal of their ...