(dissenting).
I dissent.
The crux of plaintiffs’ appeal is that the School Board’s action in sustaining the administrative decision of defendant Kott-meyer and in permanently terminating the plaintiffs’ employment was improper in that certain essential findings of fact were not supported by competent and substantial evidence on the whole record and thus failed to substantiate the charges brought by defendant Kottmeyer on which plaintiffs’ dismissal was based.
The question thus presented to this court is, was there competent and substantial evidence to support the Board’s “Findings of Fact” No. 3, 4, 6, 7, 9, and 10? While I am in basic agreement with the guidelines set forth by the Missouri Supreme Court in Tom Boy, Inc. v. Quinn, 431 S.W.2d 221 (Mo. banc 1968) for the review of administrative decisions, cited by the majority, I feel that the statement by this court in Dittmeier v. Missouri Real Estate Commission, 237 S.W.2d 201, 203 (Mo.App.1951) adds an additional criterion to those guidelines which the majority opinion has failed to consider. In the Dittmeier case we stated that, “ . . . Although the reviewing court cannot substitute its own judgment for that of the administrative tribunal, and should adhere to the rule of due deference to findings of fact involving the credibility of witnesses, its duty is to determine whether the tribunal reasonably could have made its findings and reached its result upon consideration of all of the evidence before it and to set aside decisions clearly against the overwhelming weight of the evidence. (Emphasis added.) Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647; Williams v. International Shoe Co., Mo.App., 213 S.W.2d 657, loc. cit. 662; Dyche v. Bostian, Mo.Sup., 233 S.W.2d 721. . .” It is this writer’s opinion that the Board acted unreasonably in reaching the result it did and that the decision of the Board in this instance was arbitrary and capricious in that findings Nos. 3, 4, 6, 7, 9, and 10 were clearly against the overwhelming weight of the evidence and were not supported by competent and substantial evidence on the record as a whole.
Findings of Fact Nos. 3 and 4 concerned the 1969 auditorium session. The skits in the 1969 program depicted certain events and incidents in the lives of such black historical figures as Sojourner Truth, Nat Turner, Harriet Tubman, Rosa Parks and Dr. Martin Luther King, Jr. From a reading of the scripts it appears that the skits accurately dramatize important events in the history of this country and as such are certainly the proper subject for a high school auditorium session commemorating Black History Week.
It is my opinion that, as to the 1969 auditorium session, the majority failed to consider the record as a whole in reviewing the Board’s Finding No. 3 that the auditorium session was “racist, inflammatory and promoted racial disharmony.” The majority opinion obviously feels that Dr. Kottmeyer’s observations on the propriety and the content of these skits is definitive and conclusive. The record must be viewed as a whole in order to properly review the findings of the Board.
At the Board’s hearing defendant Dr. Kottmeyer, Mr. Evans, a district superintendent; Mr. Mershon, assistant principal at Beaumont High School and Mrs. Blow, a teacher at Beaumont High School, were asked to read the skits that were presented at the 1969 auditorium session and to give their opinions as to whether or not they found the skits objectionable, and whether or not they felt that the skits promoted racial discord and hatred.
*14As to the Nat Turner skit, Dr. Kottmeyer was unable to make a judgment; Mr. Mershon objected to part of the skit; Mrs. Blow and Mr. Evans found the material acceptable. As to the Harriet Tubman skit, Dr. Kottmeyer said that the material was not calculated to produce racial harmony; Mr. Mershon found the material appropriate and Mrs. Blow and Mr. Evans found the material to be acceptable. As to the Sojourner Truth skit, Dr. Kottmeyer said that the material would not be calculated to produce racial harmony; Mr. Mer-shon, Mrs. Blow and Mr. Evans found the material appropriate.
The skit that caused the most controversy was a scene from “In White America” by Martin Duberman. Dr. Kottmeyer stated that the material was not calculated to promote racial harmony. Mr. Mershon testified that part of the skit was calculated to inflame racial hatred. Mr. Evans found the material appropriate for a small class, but not for an auditorium session. Three witnesses called by plaintiffs: Mrs. Pearlie Evans, a Commissioner of Community Service and Housing Relocation, the City of St. Louis, a National Vice President, National Association for Social Workers and a member, National Commission for Racial Justice; Mr. Andy Brown, Commissioner of Human Relations, the City of St. Louis, a resident of the City of St. Louis for 43 years; and Mr. Jack Kirkland, Assistant Professor of Social Work, St. Louis University and past member of the School Board of University City, Missouri, testified that they found the skit “In White America” to be educational and appropriate for use anywhere.
I think that it is important to point out that the events portrayed in the 1969 skits are part of America’s history. Nat Turner was hanged after his slave rebellion was crushed in Virginia in 1831. Turner’s body was given to surgeons for dissection and souvenir purses were made out of the skin. Turner’s skull was allegedly placed in the Southampton County Courthouse. The material for the skit “In White America” was taken from two sources: (1) the K.K.K. oath and the first testimony were from “ ‘Official Report of the Proceeding in the Ku Klux Trials. . . . Before United States Circuit Court . . . Held at Columbia, South Carolina, November Term 1871.’ ” and (2) Mrs. Tutson’s account is in “Testimony Taken by the Joint Select Committee to Inquire into the Conditions of Affairs in the Late Insurrectionary States (Wash: 1872), II, 59-64.” Past events in the history of this country, whether glorious or ignominious cannot be avoided or swept under the carpet. If the purpose of our educational system is to truly educate the individual, then the individual must be exposed to the truth and then permitted, with the proper guidance, to make.his own judgment on the course of events in the history of this country.
The students at Beaumont High School who viewed this auditorium session were in their junior and senior years, approximately ages 16-18. For many of these students, Beaumont High School would be their last contact with any form of formal education. As young adults these students needed to be exposed to the widest possible range of experiences and ideas in order to help them grow intellectually and emotionally. To deprive them of these opportunities would be to thwart the purpose and intent of our educational system. To avoid confronting these students with the truth is to do a great disservice not only to the students but to the entire community as well.
From my review of the record there appears to be one major criticism of the speeches and poems given at the 1969 session; that criticism concerns the speech made by Mark Jones. The record indicates that Mark Jones departed from the prepared text of his speech and made a statement to the effect that it would be necessary to destroy whites before the black man could make progress. Mark Jones’ statement was a departure from the prepared text of his speech. The plaintiffs were surprised and plaintiff Buchanan attempted to drag Mark Jones off the stage *15after that statement was made. It is incomprehensible to me how the sponsors of the Afro-American Club could be held responsible for an admittedly spontaneous remark made by a student, that departed from the prepared text of his speech. Mr. Buchanan’s actions in attempting to drag Mark Jones off the stage and attempting to silence Jones clearly indicates his disapproval of Mark Jones’ statements.
Further, the record fails to support the charges made by the Board that the sponsors assisted in the presentation of a program which was obscene and calculated to inflame racial discord and hatred. The obscenity issue in the charges leveled by the Board barely warrants comment. Under any judicial test of obscenity that this writer is familiar with, no part of the 1969 auditorium session was in any way obscene. Obscenities allegedly were used in the 1969 session but this fact hardly qualifies the program as obscene. As to the element of the charge that alleges calculation to inflame racial discord and hatred, there was not a scintilla of evidence presented to show any intention on the part of the sponsors to produce a racist program at the auditorium session.
In regards to the 1969 session, I would take issue with the majority’s statement that, “as a result of the 1969 program teachers were upset and demoralized. Beaumont teacher resignations and requests for transfers to other schools were much higher than in any other St. Louis Public High School. The authority of the teacher was undermined. Discipline problems with the students increased.” Dr. Kottmeyer testified that requests for transfers were much higher at Beaumont than in any other St. Louis school. His testimony implies that the 1969 program was responsible for the requests being made. There is no indication in the record that Dr. Kottmeyer ever talked to any of the teachers, who requested transfers, about their reasons for doing so. Further, not one of the teachers who requested a transfer from Beaumont testified at the hearing as to their motivation for seeking transfers. I think that the conclusion drawn by Dr. Kottmeyer is an unsubstantiated one and a highly prejudicial one.
Mr. Leonard Mershon, an administrative assistant at Beaumont, testified that the authority of the teachers was undermined and that there were increased disciplinary problems among the students. Mr. Mer-shon’s testimony fails to establish or even disclose any causal connection between the 1969 session and these disciplinary problems. Mr. Mershon’s conclusion about the reasons for the increase in disciplinary problems is unsupported by evidence in the record.
The majority points out that about two weeks after the 1969 program the plaintiffs received efficiency ratings of average and above average. The majority attempts to explain this away by stating that these ratings were based primarily upon the efficiency of the teacher in the classroom. If efficiency in the classroom was only primarily the basis for these ratings and not the sole criterion for grading teacher efficiency, why didn’t below average and critical remarks appear for those aspects of the teacher’s job performance that were not concerned solely with classroom efficiency, (i. e., supervision of students in extracurricular activities as the ability to handle students in a situation outside the classroom.)
Findings of Fact No. 9 found that “Inflammatory pictures were posted on wall of Room 104, home of Black Student Union, for period of time.” The majority opinion takes great pain in pointing out that this court examined the pictures that were posted on the walls of Room 104 and what the content of those pictures was. However, after vividly detailing the contents of the pictures the majority states that: (1) Room 104 was used as a study hall by other student groups; and (2) that the pictures had been upon the bulletin board for over a year and a half prior to the 1970 program. The majority’s opinion *16raises two interesting questions: (1) Isn’t it possible that at least some, if not most, of the so-called inflammatory pictures might have been posted by students other than members of the Black Student Union; and (2) if the pictures were so inflammatory as to foment racial discord why did the school administration allow the pictures to remain posted for a year and a half in an open classroom? And why were the plaintiffs not advised of the administration’s objections to the pictures?
The Board of Education, in its Findings of Facts No. 7 and 10, found that the “Auditorium session produced by the Black Student Union in 1970 promoted racial disharmony, and resulted in fire, injuries and closing of school for substantial period of time” and “Not withstanding expert testimony that skits presented at auditorium sessions would not inflame racial disharmony, resulting disturbances did occur immediately following such sessions in both 1969 and 1970.”
In the Fall of 1969 the plaintiffs were approached by Mr. Nelson, the new principal at Beaumont, who requested that the Black Student Union present an auditorium session during Black History Week. In the middle of January, 1970 a meeting was held in which Mrs. Brasfield, the coordinator of the program, discussed the contents of the program and the time schedule. Thereafter, the plaintiffs met with the Black Student Union and requested volunteers to write skits for the program. The skits were turned in to the sponsors on February 3rd or 4th and a rehearsal was held on February 6th.
At the rehearsal on February 6, 1970, Mr. Nelson and his staff advised plaintiffs that the program as presented was unacceptable and had to be cleaned up. Mr. Harrod asked Mrs. Brasfield to appear before the Black Student Union and outline the objections to the program which she did on February 10. After Mrs. Brasfield delivered her directive to the members of the Black Student Union, they voted not to present the session. At the time the vote was taken the plaintiffs were absent due to the fact that they were assigned to tutor students at other high schools. After learning of the decision of the Black Student Union, Mr. Nelson made arrangements for a substitute program.
On the morning of the auditorium session the plaintiffs were instructed by Mr. Nelson to bring their homeroom groups to the auditorium and to sit with them in the audience. Immediately prior to the commencement of the program, Mr. Nelson went backstage and found several members of the Black Student Union on the stage. The following occurred:
Mr. Nelson: “And I mentioned to several of the students, and I don’t remember any particular student, I talked specifically with the young man who was in charge and after some conversation he said to me, said, ‘Well, Mr. Nelson, we will clean it up. We will clean it up.’ And he said, T hope everything will go all right, we will clean it up, we will clean it up.’ After some discussion. . . ”
* * * * * *
“After the young man’s statement that he felt they would clean it up, I told him to go right ahead because we wanted the program. . . just move right ahead with the original program.”
The program that followed included speeches and some of the skits that were done in rehearsal and others that were not. Admittedly the skits were of a rather violent nature and contained a great number of obscenities. Mr. Nelson attempted to halt the program and a student tried to shout him down. The situation became very confused as some students refused to leave the auditorium. A small fire was set in a storeroom behind the stage and some damage to personal property was done. That evening the plaintiffs were notified by Dr. Kottmeyer that their services were being terminated as of that date.
I find from the evidence that it was the decision of the principal, Mr. Nelson, that the program be presented. Mr. Nelson had *17ordered that the program be cleaned up and the members of the Black Student Union refused. Mr. Nelson then arranged for a substitute program and so advised the plaintiffs. Mr. Nelson even assigned the plaintiffs to other duties during the auditorium session. It is irrefutable from Mr. Nelson’s own testimony that he granted the Black Student Union permission to present their program after he had originally can-celled that program.
The majority opinion stresses that the plaintiffs permitted the development of the 1970 program which was more inflammatory than the 1969 program. The majority concedes that the plaintiffs were not in active charge of the program at the time of its presentation. However, the majority contends that the plaintiffs are responsible for the development of a program that was highly inflammatory, obscene and racist oriented. However, the uncontroverted evidence in the record shows that the sponsors cut out some of the skits that were originally submitted to them on February 4 and 5. The evidence further indicates that some of the skits presented at the rehearsal had not been submitted to the sponsors. In thoroughly searching the record in this case, I find (1) that there was no evidence that the plaintiffs or either of them were instrumental in “setting in motion the forces which resulted in the presentation of a program as inflammatory and obscene” and (2) that plaintiffs or either of them had any control over the program’s content or the students’ decision to go ahead. The Board did not have competent and substantial evidence on which to base its “Findings of Fact” and the charges brought by Dr. Kottmeyer were not substantiated by evidence presented to the Board. It is my opinion that the Board could not have reasonably made its findings and reached its result upon consideration of all the evidence before it. The Board’s decision in upholding the suspension and permanent termination of the appellants’ services was clearly against the overwhelming weight of the evidence.
I am fully aware of the broad powers and authority that the School Board possesses. The School Board is charged with a heavy responsibility and their job is not an easy one. I certainly would not quarrel with the statement in the concurring opinion that the School Board has the right to terminate the services of tenured teachers. However, it is my strong conviction, supported by a careful review of the record as a whole, that the evidence presented to the Board completely failed to substantiate the charges brought against the plaintiffs. The Board could not have seriously considered the record as a whole and still reached the conclusion that it did. In this instance the Board grossly abused its discretion and acted in an arbitrary and capricious manner.
By upholding the Findings of the Board, this court has seriously affected the rights of the plaintiffs. The rights of the plaintiffs were, by and large, ignored by the majority opinion which showed a marked preoccupation with maintaining the power of the School Board no matter in what manner the Board acted. To terminate the employment of tenured teachers, good cause must be shown. The rights of tenured teachers are not absolute, their conduct is unquestionably subject to control by administrative authority. However, teacher rights may not be abrogated by a School Board that acts arbitrarily and capriciously where there is an absence of competent and substantial evidence to terminate the right to continued employment.
For the reasons listed, I would reverse the decision.