Clara S. Brubaker v. Board of Education, School District 149, Cook County, Illinois, a Body Politicand Corporate , 502 F.2d 973 ( 1974 )

FAIRCHILD, Circuit Judge

(dissenting).

I do not believe that the Woodstock brochure was either so irrelevant to educational goals or patently offensive that the plaintiffs were precluded from exercising their judgment as teachers and electing to employ it in their classes. Accordingly, I respectfully dissent from the majority's conclusion that the district court correctly held these discharges did not violate first amendment rights. I concur regarding the failure to award attorneys’ fees or back pay pending the Roth-type hearing,'and dismissal of the defamation action.

Freedom to discuss controversial or unpopular ideas in the schools is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1966). See also Tinker v. Des Moines School Dist., 393 U.S. 503, 506— 507, 89 S.Ct. 733, 21 L.Ed.2d 31 (1969). Academic freedom “d"''. not grant teachers a license to say or write in class whatever they may feel like.” Mailloux v. Kiley, 448 F.2d 1242, 1243 (1st Cir., 1971). See Clark v. Holmes, 474 F.2d 928, 931 (7th Cir., 1972), cert. denied 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973). However, particularly where the school board has not formulated standards to guide him, academic freedom affords a teacher a certain latitude in judging whether material is suitable and relevant to his instruction. “First Amendment freedoms need breathing space to survive. . . .” N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).

These instructors did not exceed the bounds which germaneness places on protected classroom speech. The discussion and distribution of the Woodstock brochure consumed no significant amount of school time. Compare State ex rel. Wasilewski v. Bd. of School Directors, 14 Wis.2d 243, 260-261, 111 N.W.2d 198, 208-209 (1961), appeal dismissed, 370 U. S. 720, 82 S.Ct. 1574, 8 L.Ed.2d 802 (1962). Further, it was arguably relevant to the course of instruction. Sievert’s class had just completed study of the history of rock music; Brubaker’s was considering the construction of musical instruments. The 1969 rock music festival at Woodstock, New York had at least some significance to these subjects, significance which was perhaps more evident in April, 1970 than it is today. More importantly, however, the appropriateness of a particular classroom discussion topic cannot be gauged solely by its logical nexus to the subject matter of instruction. A teacher may be more successful with his students if he is able to relate to them in philosophy of life, and, conversely, students may profit by learning something of a teacher’s views on general subjects.¹ Academic freedom entails the exchange of ideas which promote education in its broadest sense.

The Woodstock brochure was not so offensive that its classroom use was obviously improper. The school board had not promulgated any standards against which plaintiffs could measure this type of literature to determine whether board policy forbade its use.² The board points out that certain conduct patently exceeds “the bounds of the recognized standards of propriety” and a particular rule giving advance notice that it is forbidden is unnecessary. Wasilewski, supra, 14 Wis.2d at 257, 111 N.W.2d at 206. See also Shirck v. Thomas, 447 F.2d 1025, 1027 (7th Cir., 1971), vacated on other grounds, 408 U.S. 940, 92 S.Ct. 2848, 33 L.Ed.2d 764 (1972). However, the material in question does not fall into this category.

First, plaintiff’s experts in the field of education characterized the Woodstock pamphlet as suitable, even admirable, teaching material for eighth grade students. Whether or not this opinion be accepted, the classroom use of this work can hardly be considered “conduct, generally condemned by responsible men.” In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), reh. denied 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (concurring opinion). Second, the brochure is not obscene in the legal sense. The use of profanity does not transform the controversial into the obscene. See Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Fujishima v. Board of Education, supra note 2, 460 F.2d at 1359 n.7. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) described obscenity as limited to “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” The bulk of the pamphlet consists of inoffensive factual accounts of the Woodstock festival. Even assuming the continuing validity of the variable obscenity doctrine,³ and making the widest allowances for the age of plaintiffs’ students, neither the brochure as a whole nor the poem “Getting Together” begin to satisfy the Miller criteria. See Jacobs, supra note 2, 490 F.2d at 610.

Whether the board could constitutionally have promulgated specific rules which would have prohibited the classroom use of this literature by eighth grade students is not the issue presented. I cannot conclude that these materials are so clearly improper as to justify the mid-term discharge of an instructor who elected to use them in his teaching.

I would reverse the district court’s summary judgment for defendants and remand for determination of the amount of back pay due plaintiffs as a result of their unlawful discharge.

Appendix to follow.

APPENDIX

1 . The Supreme Court recently noted, in the context of prisoner correspondence rights, the reciprocal nature of first amendment speech rights in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Similarly, academic freedom includes both the freedom of the student to hear as well as that of the teacher to speak.

2 . The board relies in part on a provision in Ill.Rev.Stat. ch. 122, § 27-10 (1969) repealed effective Oct. 1, 1973 by P.A. 78-334, § 2:

“The nature of alcoholic drinks and other narcotics and their effects on the human system shall be taught in connection with the various divisions of physiology and hygiene, as thoroughly as are other branches, in all schools under State control. I fail to see how this statute afforded an instructor any guidance whatsoever in determining whether a particular work which alludes to the use of alcohol and narcotics is suitable educational material.

The board also refers to its policy no. 3547 which in effect prohibits the distribution of printed matter without its prior approval. This court has invalidated similar regulations for overbreadth. Jacobs v. Board of School Commissioners, 490 F.2d 601, 604-609 (7th Cir., 1973), cert. granted, 417 U.S. 929, 94 S.Ct. 2638, 41 L.Ed.2d 232. See also Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir., 1972).

3 . See, e. g., Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).