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November 19, 1974

Charles JAMES, Plaintiff,

The opinion of the court was delivered by: CURTIN

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. *fn1" On April 14, 1971 the plaintiff filed a civil rights action pursuant to 42 U.S.C. ยง 1983 in this district. The defendants moved on September 13, 1971 for a dismissal of the complaint and for summary judgment before the Honorable Harold P. Burke. By order of December 23, 1971, Judge Burke denied the plaintiff's motion for summary judgment and granted defendants' motion for dismissal of the complaint. Following appeal to the United States Court of Appeals for the Second Circuit, this action of the district court was reversed on May 24, 1972, 461 F.2d 566 (2d Cir. 1972), and the "case remanded for proceedings not inconsistent with this opinion." On August 12, 1972, while Judge Burke was on vacation, the parties appeared before me on plaintiff's application for a preliminary injunction reinstating the plaintiff to his teaching position for the school year 1972-1973. As the defendants had not obtained a stay of the order of the Second Circuit, I directed them to reinstate Mr. James. The Supreme Court denied defendants' petition for a writ of certiorari on December 4, 1972 and the action was then returned to the district court, where it was assigned to the late Judge John O. Henderson's calendar on October 29, 1973. Shortly thereafter the plaintiff renewed his motion for summary judgment, which was pending upon Judge Henderson's calendar at the time of his death in February 1974.

 In the Second Circuit decision of May 24, 1972, Judge Kaufman framed the issue in this case as follows:

. . . whether, in assuming the role of judge and disciplinarian, a Board of Education may forbid a teacher to express a political opinion, however benign or noncoercive the manner of expression. We are asked to decide whether a Board of Education, without transgressing the first amendment, may discharge an 11th grade English teacher who did no more than wear a black armband in class in symbolic protest against the Vietnam War, although it is agreed that the armband did not disrupt classroom activities, and as far as we know did not have any influence on any students and did not engender protest from any student, teacher or parent. We hold that the Board may not take such action.

 461 F.2d at 568.

 When the parties appeared before me on plaintiff's motion for summary judgment, the defendants urged that the wearing of the armband by Mr. James caused disruption in the school and that they have an opportunity to prove it. For that reason the court set this case for trial, which was held on July 9 to 11, 1974. Following trial both parties submitted briefs on the law and facts which the court has considered carefully. The following constitutes the court's findings of fact and conclusions of law.

 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. *fn2"


 In September 1969 when James began to teach English to eleventh graders, he was assigned the normal teaching load of five classes. Prior to November 14, 1969 no one complained about his teaching ability. November 14, 1969 was observed as a Moratorium Day in protest over the Vietnam War. As that day approached, the Quaker Meeting in Elmira discussed means of observing it in a proper manner. They decided that one project to be undertaken was to make armbands and to distribute them among members of the Meeting. Two to two and a half-inch wide, black armbands were placed on a table at the Quaker Meeting House for those who wanted to take them.

 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. *fn3" In fact, during the entire course of the events of November 14, no student or faculty member complained to James or even mentioned the armband. He conducted his normal teaching routine and did not discuss the armband with any of the students in class. Midway through the second period, Mr. Pillard called James on the telephone, asking him to report to his office. When James arrived there, Pillard asked him why he was wearing the armband. James responded: "Because I am against killing." Pillard then told James that he considered the armband a political act against the President of the United States and asked James to take it off. When Pillard refused James' request for time to think over removing the armband, James said he would leave it on. Pillard did not express any fear of physical disruption in the school, but did express anxiety over "getting calls from all the parents by noon." Pillard then sent James to the office of the District Principal, Edward J. Brown, who also asked James why he was wearing the armband. James told Brown that it was to demonstrate his opposition to killing and explained to him the Quaker Meeting and the background of his wearing the armband. Brown told James that he felt that the wearing of the armband had political connotations and that it was "contrary to the teachers' code of ethics, felt that it would be disruptive to the education process, and it might lead to further disruption and divisiveness among the teachers." Tr. at 207. *fn4"

 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 violated by James wearing the armband because all known sides of controversial issues should be presented to students, while wearing of the armband gave only one point of view. *fn5" Brown also felt that the armband was out of place in an English class but, under proper guidance, might be used as a class illustration in a social studies class. After his conversation with Brown, James conducted his class to the cafeteria and left the building for home. On his way home, James stopped to see a Methodist minister friend and then went to the Quaker Meeting House in Elmira where he participated in an ongoing prayer vigil.

 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. *fn6" On the same day the Board sent James a letter confirming his suspension on November 14 for a "political act" and allowing him to return to class on November 17, 1969. *fn7" James returned to his teaching assignment on the 17th ...

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