(dissenting) :
I respectfully dissent.
*1111I.
The court lends the impression that the Complaint, together with the evidence presented and the arguments advanced by Rampey, et al., at trial, raised issues of First Amendment rights of free speech beyond the April 24, 1973 press conference. Such is not supported by the record. The sole and only First Amendment issue presented and urged by the 14 at trial and on appeal related exclusively to the press conference. The trial court’s findings confirm that the press conference remarks raised the only First Amendment issue for specific trial determination:
To me, the evidence is quite convincing that Dr. Carter had intended not to recommend thirteen of the fourteen prior to the press conference. To me, the testimony of Annette Black cinches this point. She struck me as telling the unquestioned truth. She typed the list before the press conference. It was Dr. Carter’s list. Dr. Carter, prior to the press conference, had singled out at least thirteen of the fourteen for non-renewal ... I think the independent study list, sometimes referred to fn the trial as the execution list . . . played a significant part in the atmosphere of whether or not contracts were going to be renewed.
(R., Appendix Vol. 3, Supp. to Appendix, p. 565).
It just isn’t the law that you can manufacture a First Amendment right. If this was so, then all an instructor would have to do during a one-year contract would be to criticize the president. Then if his contract was not renewed he would say this is because of this criticism and you must renew it, because if you don’t you violate my constitutional right . . . this is ridiculous on its face. .
(R., Appendix Vol. 3, Supp. to Appendix, pp. 568-569).
Appellants’ Complaint alleges solely that non-renewal of their contracts of employment was in reprisal for exercise of their free speech rights arising out of the April 24, 1973 press conference “ . . . because they exercised their right of freedom of speech and expression- in criticizing defendants and disagreeing with their policies.” See paragraphs 10, 11 and 13 of the Complaint (Appendix, Vol. I, pp. 7-8). The court incorrectly observes that while the 14 were “originally” of the belief that “the press conference had been the cause of their having been fired” that they later changed their belief. This finds no support in the record. We have, in my opinion, reversed the judgment of the Trial Court on grounds not pled or relied upon in Plaintiffs-Appellants’ Complaint or urged or argued either at trial or before this court on appeal.
While First Amendment questions of “constitutional fact” have been held justification for appellate de novo review, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), still such is permitted only under exceptional circumstances in order to prevent- manifest injustice, and then only if properly presented for judicial determination. Gomes v. Williams, 420 F.2d 1364 (10th Cir. 1970). Issues not raised and presented for trial court determination are not to be considered on appeal except in order to prevent manifest injustice. Eureka-Carlisle Company v. Rottman, 398 F.2d 1015 (10th Cir. 1968); Schenfeld v. Norton Company, 391 F.2d 420 (10th Cir. 1968); Justheim Petroleum Company v. Hammond, 227 F.2d 629 (10th Cir. 1955); State ex rel. Williams v. Neustadt, 149 F.2d 143 (10th Cir. 1945). Trial court findings may not be set aside on appeal unless they are found to be clearly erroneous. See Arnold v. United States, 432 F.2d 871 (10th Cir. 1970), and cases cited therein.
The court does not come to grips with the fact that the Trial Court’s findings and conclusions are not clearly erroneous based upon the only First Amendment issue pleaded and presented in an eviden-tiary sense by Rampey, et al., and urged and argued at trial and on appeal, i. e., *1112that their contracts were not renewed because of the exercise of their First Amendment rights at the press conference. Rule 52, Fed.R.Civ.P. — the clearly erroneous rule — applies with equal force in cases involving constitutional rights. Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972). Nothing except our de novo “findings” of fact can be relied upon to justify the invocation of the manifest injustice rule. Significantly, during en banc argument, counsel for the appellants acknowledged that each of the 14 had obtained employment positions in the fall of 1973 comparable to those they held at O. C. L. A.
In Schenfeld v. Norton Company, supra, Judge Hurrah, speaking for this Court, said “. . . ordinarily a claimant cannot expect to lose in the trial court on one theory and win on appeal under another.” 391 F.2d at 424. See also United States v. Gates, 376 F.2d 65 (10th Cir. 1967), Hidden Splendor Mining Company v. General Insurance Company of America, 370 F.2d 515 (10th Cir. 1966).
While an appellate court may affirm a trial court judgment on a basis not relied upon, Pound v. Insurance Company of North America, 439 F.2d 1059 (10th Cir. 1971), it is not called upon to decide whether the trial court reached the correct conclusion of law, but only whether it reached a permissible conclusion in light of the evidence, even though it be in sharp conflict. Hodgson v. Okada, 472 F.2d 965 (10th Cir. 1973).
The court, on this appeal, has made controlling inferences which the Trial Court did not make, and has directed judgment on an independent basis neither pled, urged or argued either at trial or on appeal, violative of the commands of Zenith Corp. v. Hazeltine, 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). It is not the function of the court of appeals to infer material facts, nor may it make controlling inferences which the trial court did not make. Hodgson v. Okada, supra. Where different inferences may be drawn, appellate courts will not substitute their judgment for that of the trial courts. Colby v. Cities Service Oil Company, 254 F.2d 665 (10th Cir. 1958). The jury— or the court if tried without a jury — has the exclusive function of observing the witnesses, appraising their credibility, determining the weight to be given their testimony, drawing inferences from the facts established, resolving conflicts in the evidence, and of reaching ultimate conclusions of fact. Loew’s, Inc. v. Cinema Amusements, 210 F.2d 86 (10th Cir. 1954).
The resolution of conflicting evidence is particularly within the province of the trial court. Marken v. Goodall, 478 F.2d 1052 (10th Cir. 1973); Davis v. Cities Service Oil Company, 420 F.2d 1278 (10th Cir. 1970). The appellate court must view the evidence in the light most favorable to the prevailing party and must affirm unless the trial court findings and conclusions are clearly erroneous. Maloney-Crawford Tank Corporation v. Sauder Tank Company, 465 F.2d 1356 (10th Cir. 1972); Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970). We have here usurped prerogatives exclusively vested in the trial court. And we reverse on grounds which I believe to be based upon conjecture, guess and speculation, which we have consistently condemned. Tyrrell v. Dobbs Investment Co., 337 F.2d 761 (10th Cir. 1964); Waters v. National Life & Accident Ins. Co., 156 F.2d 470 (10th Cir. 1946).
II.
The central dispute submitted was entirely factual. Following the two-day trial, the Trial Court held that the non-renewal of the 14 contracts of employment by the Board of Regents on April 26, 1973, was not the result of reprisal against the 14 for having exercised First Amendment rights at the April 24, 1973 press conference, and that their contracts were not renewed for constitutionally valid reasons. The Court further held: (1) that appellant Rampey is entitled to a hearing to determine *1113whether there exists sufficient legal cause for the non-renewal of his contract, in view of the fact that he had achieved tenure status prior to April 26, and was, accordingly, entitled to a prior hearing with reasons furnished as to why his contract of employment should not be renewed; (2) that it abstained from a determination as to any issue of Oklahoma law relating to alleged permanent tenure status of instructional personnel at the college by reason of the ambiguity and lack of clarity of said law; and (3) with respect to three administrative personnel-appellants— Ledgerwood, Bolton and Jeffers — that Oklahoma law did not entitle them to a prior hearing, in light of the finding that such a hearing is effective only in normal situations and that the situation during the period involved was not normal. These findings are not erroneous. All are supported by substantial evidence. The court applies the clearly erroneous rule on grounds which were never urged, presented, argued or considered at trial, and which are not supported by substantial evidence. Further, the court makes many references to “termination” of the contracts and “firings”, neither of which are proper. The contracts were not terminated. There were no “firings.” This was a case involving non-renewal of contracts of employment in which none of the appellants, save Rampey, had any property interest. Some additional factual background is required in order to appreciate the correctness of the Trial Court’s judgment.
The Oklahoma College for Women was converted to O. C. L. A. in 1965. The State Regents for Higher Education determined that it should become a coeducational, innovative liberal arts college with selective enrollment standards. The implementation of these goals led to major differences on the campus. The administration of the college changed frequently from 1965 onward. Serious splits occurred among faculty — administrative personnel — some 55 in all when Dr. Carter came on board — and various divisions cropped up on the campus, in-eluding major divisions within the faculty. These differences spilled over and resulted in groups of students allying themselves with various factions. The polarization was so deep that Dr. Carter’s predecessor resigned as president in the spring of 1972, and the college was placed on academic probation by the N. C.A. and the N. C. A. T. E.
Prior thereto — in May of 1972 — the Board of Regents revoked the tenure policy. All of the appellants were immediately aware of this action. If they believed prior thereto that they would achieve tenure, as indicated in the majority opinion, the record is clear that none of them voiced any objection with the Board of Regents, or otherwise challenged the action until the instant suit was filed — a lapse of over one year! Yet, by innuendo, the court hangs the tenure “hat” on a rack that simply is not supported by this record. This is done, notwithstanding the explicit finding of the Trial Court that it abstain from a determination of the tenure issue because the Oklahoma law is ambiguous and unclear.
Dr. Klotsche, hired by the Board as a consultant, submitted three reports. The first report was made in November of 1972, just two months after the first school academic term had commenced under Dr. Carter’s presidency. During that short period of time Dr. Carter was proceeding quietly and deliberately in an attempt to become acquainted with the problems of the college. He could not have been responsible for any of the discordance on the campus reflected by that report, which stated that the campus was deeply polarized with sharp divisions among the faculty and students over program directions and that there was widespread distrust and suspicion. The report also noted that tenure had been terminated and that morale was low.
In January of 1973, Dr. Klotsehe’s second report noted that communications across factional lines were virtually non-existent, that dissension was clearly *1114visible, and that the campus situation was critical. He made numerous general recommendations. In his final report of April, 1973, he stated that no appreciable gains had been made and that no significant steps had been taken to bring the college back to appropriate governance with the roles of faculty, administration and regents clearly defined; and that an air of uneasiness pervaded the campus because the administration intended to recommend nonre-tention of a number of faculty members at the April 26th meeting of the Board.
Over the years the college had established the practice of releasing the names of faculty members who would be on the “five-week independent study” list or the “ten-week independent study” list. These lists were published just a day or so before the 14 met for the first of some five secret sessions with their retained attorney in preparation for their press conference demands. The “five-week list” corresponded with the end of the regular academic year. The “ten-week list” meant that those faculty members would teach into the summer term and, almost without exception, be re-employed for the next ensuing academic year. Dr. Carter testified that, over the years the five-week list had become known as the “execution” list. Appellant Leroy W. Rampey, who had been at the college in excess of ten years, testified that he was “nervous” about the fact that his name was on that list and that this “certainly” did influence his decision to participate in the press conference. Dr. Carter stated that he placed the names of eleven of the appellants on the list because they were divisive and made no effort to cooperate with him, including their failure to consult or contact him. Dr. Ward testified that he had received word from Dr. Carter that some of the faculty on the list would not be rehired.
Soon after their first secret meeting with their hired counsel — within a day or two after the study lists were made known — the 14 inquired of him and were advised of free speech rights of faculty and administrative personnel announced in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Their press conference was held shortly after the five weeks expired and only two days before the Board of Regents meeting when the names of those faculty — administrative personnel to be employed for the academic year 1973-1974 were released.
The following demands were made by the 14 for the very first time at the press conference held in Oklahoma City in order to obtain broader news media coverage: that Dr. Carter and Dr. Feree resign immediately; that each of the members of the Board of Regents resign and that new members be appointed; that “interference” from the Governor’s office be severely restricted; and that Dr. Klotsche’s recommendations be followed. Expressing their concern for the low student pre-enrollment and lack of adequate internal grievance procedures, they rested their case for campus solutions on implementing Dr. Klotsche’s general recommendations! But they had more to say. They pledged themselves to: (1) cause the circulation of a Grand Jury Petition to investigate violations of the open n.eeting law and “certain expenditures” made at the college; (2) to file a complaint with the American Association of University Professors for an investigation into attempts by “some administrative personnel” to deliberately set faculty members against one another; (3) to file a complaint with the Department of H. E. W. alleging that certain government regulations with reference to publication of job vacancies had not been complied with; (4) to file a lawsuit in federal court to resolve the issue of tenure; and (5) to bring to the attention of the State Board of Regents for Higher Education certain highly irregular recruiting tactics.
The press conference statement was signed by the 14 appellants. Two days later the Board of Regents met and re*1115leased a list containing the names of those faculty — administrative personnel to be rehired by the college for the next academic school year, a list prepared by Dr. Carter and typed by Annette Black well in advance of the press conference. The names of none of the appellants appeared on the list. Dr. Carter testified that Dr. Ward’s name had been crossed off of the list on the morning of the Board of Regents meeting because he had joined the 13 whom he referred to as dissidents in participating in the press conference, and that this convinced him that Dr. Ward would not cooperate with his administration.
III.
We have previously observed that the court, by strong innuendo, infers that each of the 14 were tenured and that— by necessary implication — they were denied certain due process rights incident to state tenure statutes, i. e., notice of cause for termination and/or non-renewal, impartial administrative hearing and right to appeal to the state courts. We do not decide here whether the causes testified to by Dr. Carter and others would “hold water” in the sense of a tenure statutory challenge. That, after all, is a matter exclusively within the domain of the sovereign State of Oklahoma. In any event, we know from this record that the only federal constitutional rights issue which the appellants would have raised in such a hearing is that directed to alleged reprisals for exercising protected First Amendment speech at the press conference. Notwithstanding these facts, the court makes no reference to the Trial Court’s determination to abstain from a decision on the tenure issue relating to faculty personnel because of the ambiguity and lack of clarity in the Oklahoma statutes. Having abstained, the Trial Court was then only concerned with issues involving denial of federally protected constitutional rights. Having found — and I believe quite properly so — against Ram-pey, et al., on their contention that their contracts were not renewed by reason of their press conference criticisms, the non-retention of the 14 was not a denial of “liberty” or “property” interests and there were no charges or stigmas against them foreclosing other employment. Board of Regents v. Roth, 408 U.S. at 573, 92 S.Ct. 2701.
On appeal we appear to “grant” tenure to 13 of the appellants and to retry the case on a de novo basis involving deprivation of civil rights, “finding” a most subjective First Amendment liberty: freedom from Dr. Carter’s “personality control” in his purported attempts to require the 14 to: (a) “conform to the image of the president”; (b) cease activities which he saw as a “threat” to his presidency; (c) cease “disagreements” with him in areas where Carter “does not tolerate disagreement”; and (d) “conform” to his “patterns” and “molds”. If these grounds have substance, the avenue for their redress is, in my opinion, exclusively within the jurisdiction of the sovereign State of Oklahoma. They do not rise to any federal constitutional protections under the First Amendment.
With further reference to the Trial Court’s decision that it should abstain from a determination of the tenure issue interpretive of Oklahoma law, we here ignore our rule that such a determination by a district judge who is a resident of the state where the controversy arose carries extraordinary persuasive force on appeal. Stafos v. Jarvis, 477 F.2d 369 (10th Cir. 1973), cert. denied, 414 U.S. 944, 94 S.Ct. 230, 38 L.Ed.2d 168 (1973); Hardberger and Smylie v. Employers Mutual Liability Insurance Company of Wisconsin, 444 F.2d 1318 (10th Cir. 1971); Hamblin v. Mountain States Telephone and Telegraph Company, 271 F.2d 562 (10th Cir. 1959). Furthermore, we have failed to give proper deference to the resident Federal Trial Judge’s expertise and judgment on the subject of local law. Binkley v. Manufacturers Life Insurance Company, 471 F.2d 889 (10th Cir. 1973), cert. denied, 414 U.S. 877, 94 S.Ct. 130, 38 L.Ed.2d 122 (1973).
*1116Of equal import, abstention under the circumstances of this case would be in keeping with the promotion of proper Federal-State relations in the interest of sound judicial administration and in recognition of the principles of comity. This, I submit, is particularly appropriate in the ease at bar. By abstention we would: (1) avoid needless conflict with the state in the administration of its own affairs, [Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951), Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971)]; (2) leave to the State of Oklahoma the resolution of serious unsettled questions of state law, [Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Trigg v. Moseley, 433 F.2d 364 (10th Cir. 1970); Lewis v. State of New Mexico, 423 F.2d 1048 (10th Cir. 1970)]; (3) permit the state authorities charged with the management, control and operation of their educational institutions the opportunity to judge the merits of this dispute, taking into account the abusive and insulting remarks made by the 14 at the press conference.
IV.
Some matters in the record have not, in my judgment, been accorded the significance relied upon by the Trial Court. They are: (1) Soon after the 14 first met with their retained counsel they inquired of and were advised of the free speech First Amendment rights of faculty announced in Board of Regents v. Roth, supra, and Perry v. Sindermann, supra; (2) the 14 understood the significance of the placement of 11 of their group — a so-called core curriculum group — on the “five-week independent study list”, i. e., that in all likelihood, based upon prior experience, the contracts of those on the list would not be renewed for the next academic year; (3) Dr. Carter testified that the “five-week” list was known on the campus as the “execution” list; (4) appellant Ram-pey testified that he was certainly “nervous” about the fact that his name was on the list and that this “certainly” did influence his decision to participate in the press conference; and (5) that none of the H voiced any of their objections, views, demands or recommendations made by them at the press conference at any time previous thereto to Dr. Carter, Dr. Feree, any of the college administrators or any members of the Board of Regents.
V.
I see much similarity between the trial court’s opinion in the case at bar and the opinion of this Court in Fisher v. Walker, 464 F.2d 1147 (10th Cir. 1972). Fisher, a fireman, circulated sharp and false written criticism of his immediate supervisors, and the immediate supervisors of most of the members of the Union of which he served as president, thereby creating a volatile, divisive and disruptive atmosphere within the department. Unlike the case at bar, Fisher was suspended from the department precisely because of the criticisms voiced and his unwillingness to meet with the city’s fire chief and other officers in an effort to resolve any problems. We there observed that the right of a teacher to voice criticism of the school board's fiscal policies in favor of athletics, which was held to be a protected First Amendment right in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), does not apply to an enormous variety of fact situations in which critical statements by teachers and other public employees cannot be protected under the First Amendment umbrella. We took notice of footnote 3 in the Pickering. opinion:
Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. 391 U.S. 563 at 570, 88 S.Ct. 1731 at 1735.
*1117I believe that in view of the fact that the Oklahoma legislature has vested in the President and Board of Regents the obligation to manage, operate and control the college — with the attendant grant of broad discretionary authority ■ — -that all who serve under them bear a heavy obligation to relate and to cooperate in all matters which they believe should either be altered, terminated or initiated for the good of the college, even though in. doing so they may find it necessary to be critical of and in opposition to the views of their superiors. Instead of pursuing that route, the 14 chose the surreptitious route of meetings leading to the press conference, which lent absolutely nothing concrete in terms of specific corrective recommendations for the benefit of the college, but did, because of the venomous criticisms voiced, create the very undermining of the working relationship between superi- or-subordinate referred to in Pickering, supra. In reversing the trial court judgment we have placed our “stamp of approval” on the actions of the 14 and have, in effect, mandated upon school authorities the obligation to renew contracts of those who publicly criticize them, out of fear that by failing to do so they shall subject themselves to ridicule and the results wrought by this lawsuit and, perhaps worse yet, the likelihood of personal money judgment awards against them. See Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), U.S.App. Pndg.
Instead of addressing ourselves almost exclusively to the tenuous “facts” somehow found in this record, relied upon to condemn President Carter’s so-called demands termed “personal and subjective on his part”, to-wit, that the 14 “conform” to his “patterns” and “molds”, we should ask: How many persons will be willing to serve in the future in the capacities of the appellees under the restraints and risks we have here imposed? We cannot pretend that the same quantum of proof, held to support reversal of the trial court judgment here, thus mandating the grant of in-junctive and declaratory relief sought in the Complaint, may not likewise support damage judgment awards against the appellees. See Smith v. Losee, supra.
The right of free speech is not absolute at all times and under all circumstances. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). And it has long been recognized that some forms of expression are not entitled to any protection under the First Amendment, even though they could reasonably be thought to be protected under its literal language. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). It is well established that even protected speech may be subject to reasonable limitation when important countervailing interests are involved. I believe that we have violated the admonishment in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), where the Supreme Court said:
We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.
391 U.S. at 376, 88 S.Ct. at 1678.
A board of education and authorized administrators must apply both objective and subjective tests and factors in the area of teacher employment, termination or dismissal. Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973), cert. denied, 414 U.S. 1075, 94 S.Ct. 592, 38 L.Ed.2d 482 (1974); Moore v. Board of Education of Chidester School District No. 59, Chidester, Arkansas, 448 F.2d 709 (8th Cir. 1971). In Duke v. North Texas State University, 469 F.2d 829 (5th Cir. 1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2760, 37 L.Ed.2d 160 (1973), the dismissal of a teacher with an expectancy of re-employment was upheld because the teacher used profane language in speeches critical of the university policies. The administrators were held harmless on the ground that their action was justified in an effort to maintain a competent faculty and to perpetuate public confidence in the university.
*1118VI.
The case at bar is not Smith v. Losee, supra, revisited. This is so because of several critically distinguishing aspects.
First, in the instant case, unlike Smith, the material facts are sharply and critically in dispute going to proof of the fundamental basis of the action, i. e., whether the exercise of free speech First Amendment rights at the press conference played any part whatsoever, except for the participation of Dr. Ward, in the contract non-renewals. In Smith there were few factual disputes.
Second, in Smith we held that a teacher asserting that he has not been rehired for constitutionally impermissible reasons has the burden of proving that he was dismissed for the exercise of constitutional rights. Only when that burden has been met does the burden of proof shift to the defendants, to show by clear and convincing evidence that the contract nonrenewal did not come about because the teacher exercised those protected rights, but for reasons unrelated thereto.
The clear distinctions between the ease at bar and Smith v. Losee, supra, are: (1) here the plaintiffs-appellants have not carried the burden of proof required of them; and (2) here the trial court’s findings and conclusions are based upon reasons for non-renewal of the faculty — administrative contracts which are in nowise constitutionally invalid.
VII.
The prevailing opinion does not mention that authorities — administrators and boards — have historically been clothed with broad discretion in areas involving employment. My dissent in Smith v. Losee, supra, details my deep concern that the faculty of our educational institutions will be calling “all of the shots” from top to bottom, by reason of the liabilities we have attached to actions which cannot be malicious in character. I stated in Smith v. Losee, supra, and repeat here, that where acts of school officials — administrators and, board members — are discretionary in nature— as distinguished from those which are ministerial in nature — they are immune from any court judgment so long as the acts are done without malice.
. Our instant decision is the more puzzling in light of recent opinions of the Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), which reaffirmed the rule laid down in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There the Supreme Court announced a constitutional privilege freeing the news media from common law defamation liability resulting from criticism of public officials predicated upon the “ . . . federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was true or not.” 376 U.S. at 279-280, 84 S.Ct. at 726. The majority opinion does not discuss what, if any, privilege those officials, charged by state laws to undertake the heavy and vexing obligations involved in the management, operation and control of our complex educational system, are entitled to. By ignoring the issue we may have led these dedicated and sincere public officials to believe that their “discretion” is meaningless.
By analogy, I observe that First Amendment challenges to statutes and regulations on the basis that they are “overbroad” and “vague” have not fared well in recent Supreme Court decisions. In Parker, Warden v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the Court rejected the “void for vagueness” challenge under the Due Process Clause of the Fifth Amendment, and the “overbroad” challenge under’ the First Amendment, by upholding a general courts-martial conviction under Art. 133 *1119which prescribes punishment for an officer for “conduct unbecoming an officer and gentleman”, and Art. 134 which punishes, inter alia, “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” See also Secretary of Navy v. Avrech, — U.S. —, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974), involving conviction on charges of publishing a statement “with design to promote disloyalty and disaffection among the troops”; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). Thus, while the United States Supreme Court is reversing the trend of striking down statutes and regulations challenged on First Amendment grounds as overbroad and/or vague, we seem to be travelling in the opposite direction by condemning new-found subjective restraints on ill-defined and hazy First Amendment rights.
That there exists some inequality in a school system is not sufficient to justify intervention by the federal judiciary in its management. It is only where state action impinges on the exercise of fundamental constitutional rights or liberties that the federal courts may interfere with a state’s dedication to local control of education; the judiciary is not designed to operate and manage schools. New Rider v. Board of Education of Independent School District No. 1, Pawnee County, Oklahoma, 480 F.2d 693 (10th Cir. 1973).
In Pickering v. Board of Education, supra, the Court stated:
The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
391 U.S. at 568, 88 S.Ct. at 1735.
Just as it upheld a college president’s subjective conclusion that a particular campus organization should be denied official campus recognition because the group would be a “disruptive influence”, Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), the Supreme Court recently rejected challenges to 5 U.S.C. § 7501(a) of the civil service code, which authorized removal or suspension without pay “for such cause as will promote the efficiency of the service”, as unconstitutional on the basis of being overbroad and vague. Arnett, Director, Office of Economic Opportunity, et al. v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). These decisions are in harmony with the reasoning contained in Hetrick v. Martin, supra, to the effect that the school administration may refuse to renew a teacher’s contract because of displeasure with his or her “pedagogical attitudes”, involving reasons completely subjective in nature. Fitness for teaching rests upon a broad range of factors, many of which are tested largely by subjective analysis. These include personality attitudes toward administrators, fellow teachers and students, personal appearance, demeanor, dress, ability or willingness to communicate, philosophical attitudes and general character traits.
The judiciary must be ever alert not to be drawn into nonjusticiable political questions over which it has no jurisdiction. While justiciability is not a legal concept with a fixed content or susceptible to scientific verification, Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), we must be ever mindful that the true nature of the questions propounded for judicial resolution are not in fact subjects committed solely to the political branches of government. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). I reiterate views expressed in my dissent in Smith v. Losee, supra, i.e., that school administrators and members of boards of education are not absolutely immune from suit, but that I would hold them liable only for discretionary acts performed in a malicious manner — in reckless and wanton disregard for the known rights of others. Persons acting so abusively *1120are not entitled to any immunity or privilege. If their other actions — including those attributed by the Court to Dr. Carter — are deemed by state authorities to be contrary to the best interest of the students and the institution, state officials are perfectly capable of policing their internal affairs.
It is unreal to expect school administrators and boards charged with a wide range of statutory obligations — almost entirely discretionary in nature — to discard subjective reasoning. By stripping such officials of their authority and by exposing them to judgments, including personal damage judgments, it is logical to ask: Do administrators and boards of education directed and empowered by state law to govern, manage and control educational institutions retain any such authority, or do the faculty of those institutions now, in practical effect, control and operate them by federal court fiat?
I would affirm the trial court.