dissenting:
Several considerations prevent me from agreeing with the result reached by the majority. The School Code authorizes a school board “To dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause and to dismiss any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it, * * (Ill. Rev. Stat. 1965, chap. 122, par. 10 — 22.4.) It is not clear to me that by this language the General Assembly intended to authorize a school board to discharge a teacher for criticizing the policies and actions of the board. Such an authorization would tend to cut off a valuable source of information about the conduct of a most important public undertaking. And if the General Assembly did intend to authorize imposition of the ultimate sanction of discharge against a teacher for exercising first-amendment rights, I think that the State and Federal constitutions require a more precise standard than “the interests of the schools”.
“We emphasize once again that ‘precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.’ N.A.A.C.P. v. Button, 371 U.S. 415, 438. ‘For standards of permissible statutory vagueness are strict in the area of free expression. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ Id., at 432-433 * * *. When one must guess what conduct or utterance may lose him his position, one necessarily will ‘steer far wider of the unlawful zone * * *.’ Speiser v. Randall, 357 U.S. 513, 526. For ‘The threat of sanctions may deter * * * almost as potently as the actual application of sanctions.’ N.A.A.C.P. v. Button, supra, at 433. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being sanctioned.” Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589 (January 23, 1967,) 17 L. Ed. 2d 629, 641.
The charges against the plaintiff were that his letter “contained many untrue and false statements and comments which directly and by innuendo and without justification questioned and impugned the motives, honesty, integrity, truthfulness, responsibility and competence of this Board of Education and the School Administrators of this District in carrying out their official duties * * * seriously involved and damaged the professional reputations of said Administrators and Board and are and will be highly disruptive to the discipline of the teachers and the morale and harmony among teachers, administrators, Board of Education and residents of this District, and * * * will tend to foment controversy, conflict and dissension among them and jeopardize the welfare of the schools of this District.”
These charges were formulated by the very members of the board whose “motives, honesty, integrity, truthfulness, responsibility and competence” were alleged to have been falsely inpugned. The aggrieved members of the board then determined whether the charges that they made had been established by the evidence, and they decided that their “charges on account of said reasons and causes are not remediable”, a determination required by statute before the sanction of discharge could be imposed. (Ill. Rev. Stat. 1965, chap. 122, par. 24 — 12.) The unseemliness, if not the unconstitutionality, of this procedure reinforces my doubt that the General Assembly intended that it should apply to the exercise of first-amendment rights.
But if we assume that the board had the power that it exercised, and assume further that the statements in the letter were untrue, there is still neither charge nor showing that the plaintiff knew that they were false, or that he made them with reckless disregard of their truth or falsity. “Moreover, even when the utterance is false, the great principles of the Constitution which secure freedom of expression in this area precludes attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and ascertainment of truth.” Garrison v. Louisiana, 379 U.S. 64, 72-3, 13 L. Ed. 2d 125, 85 S. Ct. 209.
Finally, in my opinion the board’s charges were not established by the evidence. No evidence was offered to show that the letter had any effect whatsoever upon the teachers, the people of the school district, or anyone else. The board’s charges alleged specific consequences, but they were not proved, and the board apparently reached its decision upon some theory akin to libel per se.
Moreover, as I read the record, the falsity of the principal statements contained in the plaintiff’s letter was not established.
(1) Two bond issue referendum elections were held in 1961. The first, on February 25, was defeated; the second, on December 2, was successful. In 1964, proposals to increase the educational and transportation tax rates were twice defeated, on May 23 and on September 19. The plaintiff’s letter was published on September 24, 1964. The opinion of the court is based upon the interpretation advanced by the board that the “original promises” of the board, referred to in the first paragraph of the plaintiff’s letter, were those made in connection with the building program involved in the second 1961 referendum, and not those made in connection with the first 1961 referendum. On that interpretation the court finds that the plaintiff’s statement was false. In my opinion that interpretation is incorrect, because in the context of the two 1961 bond issue proposals it attributes an unnatural meaning to the word “original”, and because the plaintiff’s letter states that it refers to matters contained in the “February thru November” issues of the paper. The architect testified that his work on plans for the second bond issue was done in the latter half of 1961. It is not disputed that in connection with the February bond issue, under the heading “No Frills”, it was represented: “Such items as swimming pools, athletic fields, auditoriums, etc., have been left out of this program to obtain as much classroom space as possible.” The two schools then contemplated were described as containing “Boys’ and girls’ gym for state required physical education.” The two publicity items prepared by the board and widely distributed in connection with the second bond issue also emphasized: “BUT NO FRILLS”. They did not, however, mention that there would be an auditorium in the new West High School. Nor did they mention that there would be an athletic field; instead, like the publicity for the first bond issue, they referred to “state required physical education facilities.” It seems to me that the evidence shows that the board did not disclose, in the materials that it distributed, that the meaning of “no frills” had changed, and that the auditorium and athletic fields so conspicuously omitted from the first program were included in the second. It does not seem unreasonable to infer, as the plaintiff apparently did, that this lack of candor may have played a part in the defeat of the educational tax rate increases proposed in 1964.
(2) The plaintiff’s letter challenged the accuracy of a published letter signed, “Your Board and Administration”, which “stated that teachers’ salaries total $1,297,746 for one year”. In the bill of particulars it furnished, the board said that this statement was false because it “knows of no letter written by either the board or administration that states teachers’ salaries for the figure as indicated.” But the superintendent’s letter of September 18, 1964, addressed to parents and signed “Your Board of Education and Administration,” stated that the present educational tax rate “is inadequate to meet the teachers’ salaries which alone total $1,297,746.” When the superintendent testified he stated that the “figure was correct, but instead of the word ‘teachers’, it should have said ‘Instructional Salaries.’ ” He explained that the latter category included not only teachers, but also deans, principals, librarians, counselors and four secretaries at each of the three schools. With respect to this matter the plaintiff was clearly more accurate than the board, and probably no less accurate than the superintendent.
(3) The board charged that the plaintiff’s letter falsely stated that the superintendent told the teachers, “Any teacher that opposes the referendum should be prepared for the consequences.” The superintendent denied that he made the statement. But another teacher testified that at a meeting of teachers he was struck by the superintendent’s statement, “You should be prepared to take the consequences,” and jotted it down. As to whether or not the statement could be construed as a threat to teachers who opposed the “bond issue,” he was not sure that it was directed at those who opposed it, or meant that any teacher would suffer because he could not obtain things for his classroom. The opinion of the court does not accept the board’s denial that such a statement was made, but relies on “testimony that the statement attributed to him was not a threat but was merely meant to suggest that teachers would suffer by not being able to obtain things for their classrooms because money would not be available.” Of the three teachers, including the plaintiff, who testified that such a statement was made, one gave it the interpretation stated in the majority opinion, another, “on thinking it over and on talking to other people,” was not sure whether it was directed-to those who opposed or to all teachers, and the plaintiff interpreted it as a threat to any teacher that opposed. On this evidence the plaintiff’s interpretation can hardly be characterized as false.
(4) The substantial truth of plaintiff’s charge that letters written by teachers “had to have the approval of the superintendent before they could be put in the paper” is established by the following provision in the Handbook for Teachers of Lockport Township High Schools: “In order to prevent any possible embarassment or misunderstanding, check the material with the building principal before releasing it. Any information which an individual feels should be published in the local papers should be submitted in triplicate to the publicity coordinator.” The teacher’s letters to which the plaintiff referred were actually submitted to the office of the superintendent before they were delivered to the newspaper.
The specific defects in the East High Building, of which the plaintiff complained, were established. But in other respects the plaintiff’s letter was inaccurate. He was wrong on his figures as to the total annual amount spent on varsity sports, because the $200,000 figure he mentioned included capital expenditures. The actual annual expenses were about $49,500. The plaintiff’s letter could be read as stating that in the past teachers’ salaries had not been paid; on that reading it was not true, for the record shows that teachers’ salaries had consistently been paid on time. The cost of sodding the football field was paid with borrowed funds, but this was a capital expenditure. Eliminating free lunches in connection with athletic events would have reduced the cafeteria deficit, but would not have reduced the cost of cafeteria meals from 35 to 30(8.
Tó be entitled to the protection of the first amendment it is not necessary that the plaintiff’s letter be a model of literary style, good taste and sound judgment. In my view it is not, but my view is irrelevant. The letter is substantially accurate, and more important it has not been shown to be knowingly false. Teachers are not necessarily the best critics in matters of school finance and administration, but they are in closer contact with the actual operation of the schools than anyone else and the public should not be deprived of their views.
Under our system of school administration the most important part of the job is done by hard working, conscientious, even consecrated members of local school boards who serve without compensation. It is understandable that they should be quick to take offense at statements which they feel impugn their motives, honesty and integrity. But they are public officials engaged in the conduct of public business and they cannot be immunized from criticism, even by teachers.
A legislative system which, as in this case, casts them in the role of aggrieved victims who formulate, prosecute and punish charges based on their grievances is not, in my opinion, compatible with present standards of due process. Nor is such a procedure necessary, for charges of this sort could readily be heard and determined by the County Board of School Trustees, the County Superintendent of Schools, or the Superintendent of Public Instruction. The problem is particularly acute when the sanction of discharge is involved, for then the board must determine whether the condition that gives rise to the discharge is remediable. In a discharge case the board has already determined that the condition cannot be remedied, and it is hard to see how members of the board can be expected to review that determination impartially when the conduct upon which the discharge is based involved their personal grievances.
Mr. Chief Justice Solfisburg joins in this dissent.