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March 15, 1968

Elvin ALBAUM, Plaintiff,
Thomas F. CAREY, Superintendent of Schools of Union Free School District #15, and Arthur Carin, Hal-Curtis Felsher, Howard T. Jankowitz, William Mayhew and Samuel Springer, constituting the Board of Education of Union Free School District #15, Jericho, New York, Defendants

The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, District Judge.

 Plaintiff, a high school humanities teacher, brings this action against Thomas F. Carey, Superintendent of Schools, and the individual members of the Board of Education of Union Free School District No. 15 to compel Carey to recommend him, and the Board to consider him, for tenure. He seeks to have the provision controlling the superintendent's action, paragraph 2 of section 3012 of the Education Law of New York, McKinney's Consol.Laws, c. 16, declared invalid under the United States Constitution. 28 U.S.C. §§ 1343(3), 1343(4), 2201, 2202, 2281, 2284.

 Plaintiff also contends that the failure of the superintendent to recommend him for tenure deprived him of his "rights of free speech and free assembly under the First Amendment." He seeks relief pursuant to sections 1983 and 1988 of title 42 of the United States Code.

 The cause is now before this Court on defendants' motion to dismiss the complaint for failure to state a claim on which relief can be granted and plaintiff's cross motion to convene a three-judge court to hear his constitutional challenge to the New York statute. 28 U.S.C. §§ 2281, 2284. The Attorney General of the State of New York has submitted a brief as "intervenor-defendant" supporting defendants' position. For the reasons indicated below, defendants' motion to dismiss is denied and plaintiff's motion to convene a three-judge court is granted.

 Defendants also move to dismiss as to the individual members of the Board of Education on the ground that they are neither necessary nor proper parties to this action. Disposition of this motion may depend upon the three-judge court's appraisal of the statute; decision is therefore deferred to a later "stage of the action." Fed.R. Civ.Proc. 21.

 According to the complaint, plaintiff was employed as a probationary teacher in the fall of 1964. From "commencement of his employment until December of 1966, all reports and evaluation of the plaintiff by his superiors, including the defendant Carey, consistently rated the plaintiff as superior in virtually every aspect of his performance." This "high praise" allegedly "ceased in December of 1966 immediately after defendant Carey became aware that plaintiff had become the contract negotiator for the Jericho Teachers Association," and plaintiff was not recommended for tenure the following spring.


 Plaintiff states a claim upon which relief can be granted. The complaint can be fairly read to allege that plaintiff - a model teacher - was not granted tenure solely because he participated in a teacher's union in a high level capacity. Within the confines of this complaint, plaintiff would be able to offer proof that he was punished by an agency of the state for merely inviting fellow teachers to his home to extol the virtues of unionization and to urge them to organize.

 Since the federal constitution protects such expression and association from intrusion by the states, plaintiff's allegation that he was denied tenure in a state school solely because he exercised his rights of free speech states a cause of action over which this Court has jurisdiction under the Civil Rights Act. 42 U.S.C. § 1983. See Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S. Ct. 877, 880, 87 L. Ed. 1324 (1943) ("Allegations of fact sufficient to show deprivation of the right of free speech under the First Amendment are sufficient to establish deprivation of a constitutional right guaranteed by the Fourteenth, and to state a cause of action under the Civil Rights Act, whenever it appears that the abridgement of the right is effected under color of a state statute or ordinance"); Monroe v. Pape, 365 U.S. 167, 171, 81 S. Ct. 473, 476, 5 L. Ed. 2d 492 (1961) ("Allegation of facts constituting a deprivation under color of state authority of a right guaranteed by the Fourteenth Amendment satisfies * * * the requirement"); Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964) (allegations of deprivation of privilege solely because of prison inmate's religious beliefs states cause of action under 42 U.S.C. § 1983); United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 423 n. 7, 19 L. Ed. 2d 508 (1967) ("Our decisions leave little doubt that the right of [free] association is specifically protected by the First Amendment."). Cf. L. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967).

 While the teacher has the same right as any other citizen to speech, his style may "raise grave doubts concerning his fitness for position." I Emerson, Haber & Dorsen, Political and Civil Rights in the United States, 918 (1967). Particularly during the probationary period, the academic community as well as the community at large is justified in observing him and evaluating his judgment as he responds to the pressures of the moment in public discussions. It will be difficult to prove that plaintiff was denied tenure in a public school because he exercised his constitutional freedom as a citizen to speak and not because of myriad reasons of taste and personal predilections. But, as it cannot be said that no possible set of circumstances can be visualized where a constitutional violation was involved, so it cannot be held that this plaintiff cannot possibly succeed in this action. Thus, the request for relief under the Civil Rights Act requires denial of defendants' motion to dismiss.


 Whether plaintiff's challenge to the constitutionality of section 3012(2) of the Education Law of New York requires convening a three-judge court pursuant to sections 2281 and 2284 of title 28 of the United States Code presents a much closer question.

 We would find little difficulty in construing the New York statute as denying power to withhold tenure for constitutionally impermissible reasons were it not for the fact that counsel for the state, appearing as "intervenor-defendant," insists that the right to deny tenure is unrestricted in any way. The contention that a school superintendent's power has a significant inhibiting effect on the free speech of probationary teachers would, in short, be of less substance had not the state, by its extravagant claims, added weight to that position.

 A. Statutory Scheme

 Section 3012 of the New York Education Law governs tenure in all Union Free School Districts in New York State with a population of more than 4,500. See generally, Garber and Hageny, The Law and the Teacher in New York State, 73-90 (1967). It provides for a "probationary period of three years" during which the service of a teacher may be "discontinued at any time * * * on the recommendation of the superintendent of schools, by a majority vote of the board of education." N.Y. Education Law § 3012(1). Cf. National Education Association of the United States, Trends in Teacher Tenure 18 (1957) (New York is harsher than other states in permitting dismissal even during school year). At the expiration of this probationary term the superintendent makes a report to the board "recommending for appointment on tenure" those persons who have been found "competent, efficient and satisfactory." N.Y. Education Law § 3012(2). Upon receiving such a favorable report the ...

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