As a preface to his opinion, the district judge wrote:
“This is a case in which the naivete and misjudgments of the plaintiffs, combined with their apparent lack of competent advice, have resulted in the loss of their responsible jobs at the Frederick Community College although others, more culpable than the plaintiffs, did not suffer the same fate. This seemingly anomalous result was brought about through a series of misunderstandings, misinterpretations, and misadventures, outlined in substance in this opinion, which, in combination, provided legal justification for the action taken by the Board of Trustees of the Frederick Community College in ending the employment of the plaintiffs.”
Except for the judge’s assessment of the competency of the legal advice Dr. Shaw and Dr. Winn received, I agree with his comment on the evidence. I do not agree with his conclusion that the facts “provided legal justification” for the college to discharge these professors. Therefore, I would reverse- the judgment of the district court, and direct their reinstatement.
I
The college ostensibly dismissed Shaw and Winn for insubordination and neglect of duty. It based these charges on their refusal to attend a workshop and fully participate in commencement ceremonies. Actually, it fired them because they joined other faculty members in protesting the college’s employment policies.
In Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972), the Court, speaking of a professor’s employment by a state university, said:
“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable gov*935ernmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.”
That such a denial of first amendment rights was the true motive of the college’s officials is disclosed by the fact that on other occasions other faculty members, who skipped graduation or workshops, were not discharged. The college simply reprimanded them or docked their pay. In at least one instance, it assessed no penalty for an unexcused absence from a workshop.
At the trial, the college justified its disparate treatment by drawing a distinction between infractions of the rules by individual faculty members and infractions of the same rules by a group of the faculty. The distinction on which the college relies, it seems to me, is an admission that Shaw and Winn were discharged because they acted in concert with their fellows to protest a college policy. It dispels any notion that they were in reality discharged because they did not attend a workshop or participate in the commencement exercises. The district judge’s omission of any reference to the disparity between the severe punishment meted out to Shaw and Winn and the lenient punishment of other faculty members, who, on other occasions, had violated the same rules, fatally infects his conclusion that the reason assigned by the college for the discharges was not a pretext.
Though camouflaged as discharges for breaking a college rule, the college’s retaliation against Shaw and Winn for acting in concert with other members of the faculty to protest its employment policy violates the precepts so clearly stated in Perry. For this reason alone the judgment of the district court should be reversed.
II
Even were I to accept the college’s avowal that no pretext was involved in the dismissal of these professors, I would conclude that the judgment of the district court cannot stand. The college takes the position that while the faculty members could oppose the college’s policy, they could not demonstrate their opposition by missing a workshop and refusing to march, clothed in cap and gown, in the academic procession at commencement without suffering dismissal. If the court’s function ends with ascertaining only the facts on which the college relies, then, of course, the college must prevail. I believe, however, that deciding whether the first amendment afforded protection to Shaw and Winn requires more extensive inquiry into both the law and the facts.
A teacher’s first amendment rights are not absolute. The exercise of these rights cannot interfere with the proper performance of the teacher’s duties or with the regular operation of the school. Pickering v. Board of Education, 391 U.S. 563, 571-74, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Therefore, ascertaining the balance between constitutionally protected and unprotected conduct requires consideration of both the teacher’s behavior and its effect on the college. To make this appraisal the following facts should be considered:
I Except for the charges preferred in this case, both Shaw and Winn had exemplary records at the college. They were well qualified for their duties, and the performance of their work was unblemished.
II They joined with other faculty members in announcing that their absence from the workshop and their attendance at commencement, without wearing academic regalia, was solely to protest the college’s employment policy.
K They confined their protest to these two functions and fully performed their other duties.
H The subject of the protest was an economic and political issue.
H Shaw and Winn refused to strike against the college, and they persuaded more impatient members of the faculty to forego drastic action.
*936H At all times, they acted in good faith under the advice of competent counsel.
I believe the effect of their conduct on the college was minimal for the following reasons:
1 They attended the commencement, plainly identified by name tags, and sat with a majority of the faculty in a special section. They did not disrupt the ceremony. Their refusal to appear in cap and gown was not shown to have interfered in any way with the regular operation of the college. It was a symbolic gesture tantamount to the wearing of an armband which the Supreme Court deemed subject to first amendment protection in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
H The workshop they missed dealt with budgeting. There is no evidence that their absence in any way impeded the performance of their own duties or interfered with the work of others.
1 The triviality of their transgressions is demonstrated, as I mentioned in Part I, by the fact that other faculty members, who violated the same rule by similar conduct on other occasions, received little or no punishment.
Balancing the undisputed facts persuades me that the right of Shaw and Winn to protest the college’s employment policies was protected by the first amendment. They did not forfeit this protection, for their protest neither impaired their own work nor interfered with the operation of the school.
Ill
Finally, the college unfairly singled out Shaw and Winn even after they had been notified that they would be dismissed on June 30. The college reinstated each protesting member of the faculty, who delivered a letter of contrition by June 30, and permitted still others to make amends as late as August. June 30 fell on a Saturday. Shaw and Winn delivered their letters on Monday, July 2. Nevertheless, the college rejected their letters because they were not received by the June 30 deadline, and it declined to reinstate the men. The district court upheld the different treatment accorded Shaw and Winn on the ground that while they, as division chairmen, were classified as administrators whose contract year commenced on July 1, the others were not administrators. I believe that the district court’s conclusion that this classification was rational for the purpose of disciplining Shaw and Winn is not supported by either the law or the facts.
In Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971), the Supreme Court succinctly restated the principles governing the application of the equal protection clause:
“In applying [the equal protection] clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. . . . The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ”
The facts of this case show that classifying Shaw and Winn differently from the other faculty members for the application of a June 30 deadline was unreasonable and arbitrary. The deadline bore only a nominal relation to them. The previous year, the college had granted Shaw tenure and Winn a continuing appointment. Therefore, their right to employment did not automatically expire on June 30. On the other hand, if their conduct warranted dismissal, the college was under no obligation to continue employing them until June 30. The June 30 date was irrelevant for the purpose of determining whether they *937should be discharged. Moreover, there is no evidence that the college had taken any steps between June 30 and July 2 to hire any replacements, and it was not in any other way prejudiced by the weekend delay. Since the regulation classifying Shaw and Winn as administrators bore no relation whatsoever to reinstating them either before or after the June 30 deadline, I conclude that the college denied them the equal protection of the laws.
The college’s belated offer of one year contracts did not remedy the wrong done these men. The withdrawal of tenure and the cancellation of the continuing appointment constitute, in my opinion, unacceptable punishment for the exercise of first amendment rights.
A citizen’s contest with any level of government over economic and political issues is, at best, a difficult undertaking. It becomes almost insurmountable when the first amendment’s protection against retaliation for protesting government policies is withdrawn for trivial and unsubstantial reasons. I would reverse the judgment of the district court.