Summary
In Jarvella v. Willoughby-Eastlake City School Dist. (1967) 12 Ohio Misc. 288, 41 Ohio Ops.2d 423 [ 233 N.E.2d 143], the court faced the issue of whether a teacher could be dismissed for "immorality" merely because he had written a private letter to a friend containing language which some adults might find vulgar and offensive.
Summary of this case from Morrison v. State Board of EducationOpinion
No. 46564
Decided November 21, 1967.
Schools — Teachers — Termination of contract — Grounds for — Section 3319.16, Revised Code — "Immorality" construed — Private writings of teacher — Freedom of speech — Right of privacy.
1. The term "immorality" given as a ground for dismissing a public school teacher in Section 3319.16, Revised Code, refers to conduct which is hostile to the welfare of the school community.
2. A board of education cannot concern itself with the private writings of a school teacher which neither produce, nor threaten, injury to the welfare of the school community.
3. The discharge of a school teacher under Section 3319.16, Revised Code, upon the sole basis that he wrote two private letters containing vulgar language contravenes a constitutionally-protected area of freedom of speech and right of privacy and is contrary to law, in the absence of evidence showing some public injury.
Mr. John S. Nelson, for plaintiff.
Mr. J. Melvin Andrews, for the school board.
In this case plaintiff was dismissed from his post as a high school teacher under contract with the defendant school board because of "Immorality" under the authority of Section 3319.16, Revised Code.
The complaint against him is confined to two letters which he wrote to a former student, one Ben Nichols, who had graduated from the high school in June of 1966. The letters were written in July and December of the same year. They contain language which many adults would find gross, vulgar and offensive and which some 18-year-old males would find unsurprising and fairly routine.
The letters were sealed, addressed to Nichols and mailed to him personally, via regular, first-class post. Thereafter, they had an unexpected, and for plaintiff, disastrous, career.
Soon after the December letter was received by Nichols, his mother found both among his personal effects. On December 22, 1966, she turned them over to the Willoughby Police Department. From here they went to the school system. Plaintiff was briefly suspended for investigation, then reinstated. Subsequently, in some fashion not explained, local newspapers learned of the letters and numerous stories appeared.
On February 1, 1967, the prosecuting attorney for this county was quoted in one paper as saying that he had read the letters, considered them hard-core obscenity and that "it seemed obvious that a person who would write letters of this kind is not fit to be a school teacher."
On February 7, 1967, plaintiff was notified in writing of the board's intention to terminate his contract. Evidence was presented to the board at a private hearing on March 8, 1967, at the conclusion of which it adopted a resolution terminating the contract for "Immorality."
Plaintiff appealed the termination to this court and a hearing was held August 22, 1967, on the transcript of the record below and the allowance of limited additional evidence. Permission to submit briefs was granted and all briefs have now been received.
The single question confronting this court is whether the action of the Board of Education is supported by substantial evidence and the law.
I find that it is not.
Accordingly, the relief plaintiff requests is granted. The resolution of termination must be vacated and plaintiff restored to his rights under his teaching contract.
Whatever else the term "Immorality" may mean to many, it is clear that when used in a statute it is inseparable from "conduct." Both counsel agree that this is so. But it is not "immoral conduct" considered in the abstract. It must be considered in the context in which the Legislature considered it, as conduct which is hostile to the welfare of the general public; more specifically in this case, conduct which is hostile to the welfare of the school community. 44 Ohio Jurisprudence 2d 673, Public Officers, Section 174; Horosko v. Mt. Pleasant Twp. School District, 335 Pa. 369, 6 A.2d 866.
In providing standards to guide school boards in placing restraints on conduct of teachers, the Legislature is concerned with the welfare of the school community. Its objective is the protection of students from corruption. This is a proper exercise of the power of a state to abridge personal liberty and to protect larger interests. But reasonableness must be the governing criterion. The board can only be concerned with "immoral conduct" to the extent that it is, in some way, inimical to the welfare of the school community. The private speech or writings of a teacher, not in any way inimical to that welfare, are absolutely immaterial in the application of such standard. Orloff v. Los Angeles Turf Club, Inc., 36 Cal.2d 734, 227 P.2d 449.
Considered in this light, even if it may be said that the writing of these letters was "Immorality" in the abstract, which is highly doubtful, it cannot be "Immorality" used to justify the discharge of this plaintiff.
He was a teacher of exceptional merit. This conclusion is compelled by the testimony of his fellow teachers and administrative superiors, as well as by every written evaluation of him routinely made from 1963 until his severance. (Pages 49 through 96 of the transcript and Exhibits 1 through 7.)
He was dedicated to his work, enthusiastic and successful. He had a personal commitment to his students beyond the norm, devoting much free time to extra-curricular school activities. More than this, he had a sensitivity and concern for the students' personal problems, which they evidently recognized, for he enjoyed their confidence and respect and had an excellent rapport with them.
There is no evidence of any kind, nor any inference from any evidence, that the writing of these letters adversely affected the welfare of this school community. Of course, such an effect did come in time, with the public disclosures. But this was the result, not of any misconduct on his part, but of misconduct on the part of others, which it is not my intention to explore.
Once the private character of these writings became evident and investigation disclosed no hostile effect upon the welware of the school community, the limit of the school board's proper interest was reached.
The private conduct of a man, who is also a teacher, is a proper concern to those who employ him only to the extent it mars him as a teacher, who is also a man. Where his professional achievement is unaffected, where the school community is placed in no jeopardy, his private acts are his own business and may not be the basis of discipline.
The freedom of action of a public school teacher, like that of all contracting parties, is partly hedged in by the terms of his contract. But there is no term which waives his right to privacy, his right to private communication, free from unwarranted intrusion. That is not to say there may be no intrusion. The limit of a private right is reached where public injury begins.
The pivotal phrase in the statement of rights is "unwarranted intrusion." Transposing into the statement the facts of this case, the action of the school board in intruding these private letters between the teacher and his job was unwarranted because there was no public injury. Absent this, the letters were within the protection of the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution, and also within the protection of Article I, Section 11 of the Constitution of Ohio. 16 American Jurisprudence 2d 665, Section 345; American Communication Association v. Douds, 339 U.S. 382; Roth v. United States, 354 U.S. 476.
This opinion applies to the facts of this case alone and is not intended to suggest that school boards may not discharge teachers for "Immorality" consisting of vulgar or obscene writings in the light of other facts.
In his brief, counsel for plaintiff contends this court should have granted a hearing de novo; further, that plaintiff was denied due process because of claimed irregularities in the board hearing and its membership. The first contention is rejected on the authority of Powell v. Young, 148 Ohio St. 342. The second is rejected on the authority of Spruce Hill Twp. School District v. Bryner, 148 Pa. Superior Rep. 549, 25 A.2d 745; 2 American Jurisprudence 2d Section 258, pages 89 and 90.
There is no impropriety in one or more board members conducting a private investigation prior to a public hearing, nor to his having an opinion on the subject then. The bringing of the charge presupposes that board members have knowledge of the facts and have an opinion. Unless they did, the charges should not have been brought in the first instance.
It is unnecessary to comment on the claim plaintiff's counsel also makes that the writings were justified, even though they may be found to be immoral, beyond saying that there is evidence in the record tending to show a proper motive for the writing of the letters and the choice of language used.
Counsel for plaintiff shall prepare a journal entry in accordance with this opinion and submit it to opposing counsel and the court for approval.