(dissenting).
I am not greatly disturbed with the result reached by the majority for the reason that it is not particularly significant from a practical standpoint. Despite the conclusion of the board that plaintiff did not meet “minimum standards of judgment, decency and decorum which a teacher in this district should observe” and the order of dismissal, the record discloses that plaintiff soon thereafter was offered and accepted employment in the school system of Burns, Oregon. The blight cast by the proceeding upon the academic record of the plaintiff, however, is a matter that merits consideration and my disagreement with the majority stems from that and what the opinion portends in a matter of great concern to the public, to the boards, and to the teaching profession. I cannot help but feel that the rationale and philosophy underlying the memorandum opinion of the trial court and of the majority leads to a result contrary to the intent and purpose of the Administrative Procedure Act and the Wyoming Education Code of 1969, which are designed to prevent the exercise of uncontrolled discretion by school boards in the firing of teachers. If a teacher can be discharged for incompetency on the basis of the record before us in this case, it is quite apparent that a school board would have little difficulty in dismissing a teacher who for flimsy reasons had incurred the ill will of the board.
In this connection I am not unmindful of or opposed to the doctrine of abstention by the courts from interfering with school boards in affairs of this kind. Today, however, in the light of the A.P.A. and the school code, which I have mentioned, and fairly recent decisions particularly of the Federal courts dealing with due process, with academic freedom, with the right of free speech, and the Civil Rights Act, we have an entirely new “ball game” and these problems must be approached accordingly.
I am appreciative also of the fact that the record before us leaves much to be desired as a basis for considering in depth the questions presented. In the hearing before the board, point after point is meagerly or wholly undeveloped by the evidence and the presentation here also leaves much to be desired. Nevertheless, contrary to the majority view, I think it sufficient to raise grave questions and we are not relieved from making a careful review and analysis of the whole of the record to determine whether the action of the board was viola-tive of administrative due process, was arbitrary and capricious, and was unsupported by substantial evidence as charged by plaintiff. My analysis of the record and the law applicable thereto persuades me that plaintiff’s contentions in several respects are sound and should be sustained.
With respect to due process insofar as it relates to the failure of the board to adopt rules of practice and procedure, I agree with the general discussion and holding of the majority. With respect to lack of proper notice by the board, I also agree that there is no cause for reversal here inasmuch as the record shows that the evidence of both parties relating to what the parties deemed to be the issues raised by the notice came in without objection on the basis of the inadequacy of the notice. Nevertheless, I think the matter merits some comment. It cannot be overlooked that this is a penal proceeding. At the time the board served its notice it was well aware of the detail of the matters upon which it was going to rely as constituting grounds for plaintiff’s dismissal. Under those circumstances § 9-276.25 (b) (4) of the A.P.A., W.S.1957, 1969 Cum.Supp., provides that the notice must “state the matters in detail” and certainly the “shotgun” charge of paragraph 1 of the notice is not only in direct violation of that provision but to me reflects unfairness on the part of the board inasmuch as it was the accuser and plaintiff was afforded very little time within which to prepare his defense. Even after hearing and issuance of the board’s order, we are not told which of the general standards *?prescribed by § 21.1-160 of the code, W.S. 1957, 1969 Cum.Supp., plaintiff was charged with violating. The standard adopted by the board and quoted above is not a statutory standard but inasmuch as the trial court and the majority have treated it as falling within the standard of “incompetence” as a teacher, I shall do the same.
Another phase of the matter which I think merits further comment in addition to what I have aready said is plaintiff’s contention that we must at least under the circumstances of this case make a “zealous examination of the whole record” in order to protect the fundamental rights of the plaintiff. Whether it should be a “zealous” or a “careful” review as I have said is not important. It must in any event be adequate.
Ordinarily when agency action is before the trial court or this court for review it involves a decision in a proceeding initiated and submitted to the agency by private parties. There are, however, cases coming before us when that is not true and this case illustrates the exception. Here the board, acting upon its own rather than through the superintendent or a member thereof as contemplated by § 21.1-160(a) of the code, placed itself in the unenviable position of being the accuser, the prosecutor, and the judge of the merits of its own charges. I do not say that this, standing alone, is violative of the due process clause of the Federal constitution and of this state inasmuch as it has often been condoned, primarily on the ground of necessity, which incidentally is not present here inasmuch as § 21.1-15 of the code furnishes a forum whereby local boards having grievances with a teacher over competency, for example, can have the controversy heard and determined by the State Board of Education. In pointing this out, however, I want it to be understood that I am not impuning the integrity, good intentions, and sincerity of purpose of the members of local boards when placed in this dual position, which could hardly be of their own choosing but nevertheless forced upon them by the legislature. I am simply pointing out that inherent in the requirement for a hearing is the need for impartiality and an objective analysis and “consideration of the whole record,” which § 9-276.26(a), W.S. 1957, 1969 Cum.Supp., in fact requires on the part of the local boards; and it is for us, as I stated above, to see to it that these safeguards are observed.
Otherwise the hearing might well represent a mere formality looking toward a predetermined and desired result by the trier of the facts bringing discredit to the courts and to the administrative process. As indicated in the footnote of the recent case of Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 88 S.Ct. 1731, 1740, 20 L.Ed.2d 811, it will not do simply to search the record for bits and pieces of evidence that lend support to a decision rendered under such circumstances. That is my approach here, and I think I can demonstrate wherein the board here did not act impartially, was arbitrary and capricious, and in several instances based its conclusions on findings of fact contrary to or unsupported by the evidence which entered into its conclusions.
In doing so I do not overlook the fact and can understand that the difficulties plaintiff had with the board and its members were mostly of his own making in that he had apparently incurred the ire of the board members by flaunting before them a style of hair, a beard, and dress of which they disapproved, and at their invitation and in a conference called by them on April 6, 1969 for an interview concerning his philosophy of education, his justification of the articles appearing in the April 1, 1969 issue of the school paper, and other matters, made known his views on legalization of marijuana and student sit-ins, which were as abhorrent to the board as they would be to the great majority of adult Wyomingites. As judges, however, we know and the board knew, as reflected by its order, that this alone would not justify dismissal. I shall discuss this more fully in connection with the board’s findings and conclusions.
*490Reverting for the moment to the matter of impartiality, I would point out also that the board had an “ax to grind” in this proceeding. At the time the board had its interview with plaintiff it had already entered into a contract with plaintiff dated March 11, 1969 for the ensuing school year 1969-70. As matters developed on or about April 6, 1969 — the date of the interview— it is only reasonable to suppose that the board under the circumstances was desirous of getting out from under the renewal contract. In order to accomplish its purpose, it set in motion the within proceeding by serving upon plaintiff on April 9, 1969 its notice of dismissal “effective at the end of the current semester,” which as the board concedes was on or about May 31, 1969, the time when the 1968-69 contract expired. By that time, of course, the contract would have been fully performed by both parties. The only thing to be gained by the board was indirect relief from its renewal contract, which apparently has been accomplished. In this connection it will be of interest to note the board’s finding XIII, reading as follows:
“That the Board takes notice of the fact that before the 1969-1970 contract was executed by Raymond Charles Jergeson the Board suggested to the teacher that he not execute the contract and that he seek other employment for the coming year.”
The record does not disclose, in keeping with the provisions of § 9-276.26 (d), W.S. 1957, 1969 Cum.Supp., that plaintiff was ever notified the board would take notice of such fact and the board introduced no evidence to show that plaintiff was ever told not to sign the contract. Nonetheless, the inclusion of that language in its order would indicate that it was taken into consideration in the board’s action. In this connection I would point out that the burden under the code was on the board to establish by the record justification for the action it took and one of the most difficult problems the board had to face in the light of the foregoing was the fact, as we well know, that the superintendent had prior to the renewal recommended the renewal of plaintiff’s contract, which in itself is rather persuasive evidence that plaintiff was not an incompetent teacher. Also, it is worthy of note that the board did not call the superintendent or the principal, plaintiff’s immediate superiors, to testify at the hearing on the basic issue of incompetence.
Further, in discussing the incidents upon which the board relies, it should be noted that general reference has been made to plaintiff’s asserted violation of minimum standards of conduct and propriety as a teacher. Other than the general statutory standard, the only prescribed standard in this case is that contained in the printed form of the board’s contract, reading as follows:
“Recognizing that teaching is a profession, desiring to assist in the elevation of the teaching profession, and to conduct myself in a completely professional manner, I promise that I will honor the letter and spirit of this contract to the fullest of my ability.”
Granted, a teacher as a part of his training should be versed in a general way with the need for and the reach of those general standards. One of the difficulties here, however, is that the board produced no direct evidence by a professional as to acceptable minimum conduct under such standard and prior to this proceeding at least had adopted no rule or policy augmenting such standard as to minimum conduct that would be acceptable to the board. Thus the plaintiff, about which he complains and rightfully so, and the trial court and this court were left to speculate as to just what minimum performance the board expected of its teachers.
THE NEWSPAPER
For convenience there is appended hereto a copy of the article entitled “Meany Master.” It is undisputed that plaintiff was the adviser of the newspaper, but the president of the board testified that the superintendent and principal also had re*?sponsibilities in connection with the newspaper. It is likewise undisputed that it was an “April Fool Edition” of the paper and it is clear from the president’s testimony that the board had discussed the edition with plaintiff prior to hearing and had concluded that the items in question were not humorous. Also, that it was directed toward the sponsor in charge of the school activity. It is also undisputed that the board had no standards, rules or regulations as to what the responsibilities of the adviser, the principal, and superintendent were with respect to what should or should not be published in the paper.
With respect to these matters, the board found “That the writing wrongly characterized the faculty member as being oppressive, devious and a person of low intelligence” and that said issue of the newspaper was “offensive to some students, faculty members and parents of students.” In its general discussion it said that the issue “is evidence of a permissive attitude in the classroom which is not in the best interest of the students. The ‘Meany Master’ story sharply attacks a member of the high school faculty. In our opinion this undermines respect for the teacher involved and to some extent for the faculty as a whole.” It then went on to say that it was not greatly concerned with the picture except that it reflected an attitude of permissiveness. The majority has seen fit to resolve this question on the basis of the trial court’s opinion, and while I agree that the student author’s freedom of expression is “subject to reasonable restrictions as to time, place, manner and duration” of making, Sullivan v. Houston Independent School District, S.D.Tex., 307 F.Supp. 1328, 1339, and as indicated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, 739, it must not materially and substantially interfere with appropriate discipline in the operation of the school and must not collide with the rights of others, I would point out that the board’s finding set out above that the issue was offensive to some students and to parents of students is not supported by substantial evidence. No student or parent so testified. The only faculty member who testified with respect to it was the sponsor who said that her reaction was one of “shock and disgust,” and while it “shook” her up temporarily she recovered by the next day and her teaching ability was not affected. She also testified:
“Q. Well, tell me what’s true in the article first? A. I know nothing is exactly true. It isn’t really false, it’s exaggerated, out of proportion. Some of the statements are false. It’s hard to say anything is really true.
“Q. But it intimates what actually happened? A. Yes, it does.”
I would also point out that there is no evidence that the issue of this newspaper caused any disruption in the discipline and operation of the schools and certainly the fact that the board was “offended” and did not regard the article as humorous and felt that it constituted “a demonstration in poor journalism,” of which there is likewise no evidence, represents no standard by which plaintiff’s competence as a teacher could be judged. The fact remains that plaintiff, the only expert on journalism, did by his approval regard the article as humorous and as good journalism. What the board actually did was to determine that the “Meany Master” article per se was detrimental to the school, but as stated in Pickering, supra, 88 S.Ct. at 1736:
“However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members’ own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant’s letter containing the statements that we have found to be false, see Appendix, infra) cannot reasonably be regarded as per se detrimental to the district’s schools. Such an accusation reflects rather a difference of opin*492ion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.”
With respect to the restrictions noted above on the staff member’s right to author and have published the “Meany Master” article, the principal of the high school said that the purpose of the student newspaper “first of all, is to instruct students in writing journalistic writing and putting together a newspaper. Secondly, it’s to serve as communication between students, between faculty and students, between students and faculty, to inform the school community about events, and to bring up matters of school interest and school concern.” To say that the article did not fall within that general purpose is wholly unreasonable.
It is true, of course, that she was not speaking out on the Vietnam war but she was speaking out on a matter of concern to the girls participating in a school activity which in their young lives was an important, enjoyable and integral part of school life. The whole thrust of the article was to protest what the author regarded as a chilling effect upon those activities by the sponsor’s imposition of arbitrary rules of her own making and her refusal to listen and consider the girls’ complaints. True, the article was “barbed” but when measured by the view taken by the court with respect to the “Grass High” article appearing in Scoville v. Board of Education of Joliet Township High School District 204, County of Will, State of Illinois, 7 Cir., 425 F.2d 10, 15-16, and the view of the court concerning an article entitled “Edmund’s Thoughts” and “School Spirit vs. Conscience” in Sullivan v. Houston Independent School District, S.D.Tex., 307 F.Supp. 1328, 1348, which went far beyond being “barbed” and far exceeded the manner of criticism employed here, it is clear that the board erred in reaching its conclusion on a per se basis.
Accordingly, it seems to me that before plaintiff could be penalized for failing to prevent the publication of the article in the school paper the school board would first have to justify an invasion of the author’s right through the medium of the plaintiff, Scoville v. Board of Education of Joliet Township High School District 204, County of Will, State of Illinois, supra, 425 F.2d at 13. It has not done so, and to equate plaintiff’s refusal to prevent publication as evidence of “incompetence” as a teacher is unreasonable and unwarranted as disclosed by the quote from the Zucker case in the majority opinion.
With respect to the picture of the urinals, I would not quarrel with those who considered it out of place in a student newspaper. It seems to me, however, that this might well have been prevented by the adoption of a rule preventing such a happening, which the board is apparently now doing, as there were and are bound to be different opinions in such matters. In any event the picture lends little support to the harsh remedy the board imposed.
POEM
Other than to point out that the poem was not placed on “a blackboard in Mr. Jergeson’s classroom” as the board found but was placed on the bulletin board in the “Ock” room where the students on the staff of the school paper went to get their assignments and put the school paper together, it seems to me the significance of this incident was built up by the board out of all proportion to its importance on the basic issue of plaintiff’s competence and lends little if any support to the board’s order.
USE OF TERM “RAPE”
Here again I think this incident was built up out of all proportion to its significance. According to the young lady who testified concerning the matter, there was no reaction from the ten or fifteen girls in the class. I would agree, however, that plaintiff’s choice of the word to lend emphasis to the need for discipline in the halls of the high school was tasteless and extreme. That the incident verges on interference with academic freedom as viewed by the *?Federal courts, however, is well demonstrated by Keefe v. Geanakos, 1 Cir., 418 F.2d 359, where a word much more shocking than the word used here was contained in a reading assignment ip-an English class and the court nevertheless held that the firing of the teacher for making the assignment was erroneous. The court had this to say, 418 F.2d at 361-362:
“Hence the question in this case is whether a teacher may, for demonstrated educational purposes, quote a ‘dirty’ word currently used in order to give special offense, or whether the shock is too great for high school seniors to stand. If the answer were that the students must be protected from such exposure, we would fear for their future. We do not question the good faith of the defendants in believing that some parents have been offended. With the greatest of respect to such parents, their sensibilities are not the full measure of what is proper education.
“We of course agree with defendants that what is to be said or read to students is not to be determined by obscenity standards for adult consumption. Ginsberg v. New York, 1968, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. At the same time, the issue must be one of degree. A high school senior is not devoid of all discrimination or resistance. Furthermore, as in all other instances, the offensiveness of language and the particular propriety or impropriety is dependent on the circumstances of the utterance.”
Also, I do not agree that the Parducci case cited by the majority does not bear upon this question even though not “right in point.” It contains an informative and well supported discourse upon this subject and while it is true that the board did not concede that plaintiff was a “good teacher” there is no basis in the record, as I have pointed out, for drawing an inference to the contrary.
In this connection it is of interest to observe that while the board objects here to the method employed by plaintiff to maintain discipline, it took special note by its finding X based upon the testimony of Edmund Skar with respect to another isolated incident that plaintiff “made no effort to control or discipline the students” in Skar’s presence. Again I would point out that neither of his superiors, so far as the record shows, ever reprimanded plaintiff for his lack of discipline.
HEARSAY TESTIMONY
I agree that plaintiff’s objection to this testimony on the basis of hearsay was not well taken. I do not agree, however, that this disposes of all of plaintiff’s contentions directed at this testimony. In addition, this testimony demonstrates rather clearly that the board did not act impartially in the discharge of its function as trier of the facts/' It is true that by its order, which obviously was skillfully drawn by its attorney, the board recognizes the right of plaintiff to his beliefs and philosophy but by other language then proceeds to chill that right on the ground that plaintiff “conveyed” and expressed his beliefs and philosophy to the students in his classroom. That these matters weighed heavily with the board is disclosed by its findings and conclusions. The board made these findings :
“VIII
“That in April, 1969, the said teacher stated to a member of the Board that in the opinion of the teacher, the use of marijuana is a matter of individual choice, suggesting that in the opinion of the teacher that those who so desire may use or possess the narcotic drug. Student evaluation sheets show that this opinion of the teacher has been conveyed to his students. One student wrote: ‘He seems to feel the smoking of pot is Ok. * * * ’ At the hearing the teacher did not deny or qualify these statements.
“IX
“That in April, 1969, the said teacher stated to a member of the Board an *494opinion relating to high school student protest, to the effect that students may justifiably occupy the administration offices. That the teacher did not deny or qualify these statements. The students evaluation sheets show that this philosophy was conveyed to the students.”
It concluded:
“We have carefully reviewed the student evaluation sheets which were offered in evidence by Mr. Jergeson. We have particularly noted the references to narcotics. Many of these evaluations state that Mr. Jergeson was a stimulating instructor. They show that he influenced youngsters in his classes. The comments affirm his opinions regarding protest. Some of the comments are as follows: ‘Mr. Jergeson is basically anti-establishment.’ Another student reported: ‘He also has some rather weird ideas that I had credited to “hippies” * * * ’ One student observed: ‘He realizes what a mess Sheridan High is, * * * ’ In answering a question if the teacher promoted activities which parents feel are objectionable, the student answered: ‘The way which he continually tries to tear down society and the people that live with it. He downgrades many of the people’s actions that perform a function in society.’ Another student said, T feel he has prompted some kids to be unpatriotic to their parents, school and country.’
“We do not place controlling weight upon the student evaluation sheets. We recognize that a student may unfairly criticize an instructor on such a questionnaire; however, they simply show that his opinions regarding student protest and narcotics were carried into the classroom, and in our opinion tend to produce unwholesome results. Challenging the fundamental values of society is perhaps normal for high school youngsters and some young teachers. This is recognized by the Board. However, the opinion, when expressed in the classroom that the use and possession of marijuana is a matter for the individual to decide, will not be condoned in this district. Mr. Jergeson’s challenge of fundamental values shows a lack of propriety which, when considered with the other evidence, requires his dismissal.”
If its findings and conclusions were sufficiently supported by the record, I would heartily agree with the board that the plaintiff’s dismissal on that ground alone would not only have been justified but would have been demanded. The time and place of the voicing of his philosophy under such circumstances would be inappropriate and not privileged. The difficulty with the findings and conclusions, however, as plaintiff points out, is that they are not so supported. The trial court so determined, with which I agree, and in its memorandum opinion stated:
“This Court does not think there is proper proof that Jergeson expressed his views of marijuana and student take over of the school in class.”
The only testimony presented at the hearing bearing upon plaintiff’s expressing his philosophy to the students on student protest was that of Hardy Tate who attended four classes taught by plaintiff during the previous school year. On direct the student, in answer to a question on plaintiff’s “teaching techniques,” testified that plaintiff stimulated discussion and argument and caused students to think. On cross by the attorney for the board he was then asked the following question:
“Did Mr. Jergeson ever state in a class that you were in that students should have the right to go into the Superintendent’s office of the Administration office and protest if they felt they had a just cause to do so ?”
and answered:
“I don’t remember any instances like that, not in my classes.”
With respect to marijuana, the board relied solely on the statement of one student given in an answer to a question in a student survey made by the principal which *495asked “Does he promote activities or behavior that you feel are questionable?” and to which the student replied that plaintiff “seems to feel the smoking of pot is Ok.” This same student, however, prefaced that remark with the statement that although plaintiff is a “liberal,” he “says or does nothing to change anyone’s ideas greatly.” In addition the board selected and emphasized other answers from the survey such as plaintiff was “basically anti-establishment” ; had “rather weird ideas that I had credited to ‘hippies’ ”; “continually tries to tear down society”; and lastly a feeling of one student that plaintiff had “prompted some kids to be unpatriotic.”
These statements, of course, represent only the results of a survey but inasmuch as the board placed great reliance on this survey in support of its charge that plaintiff’s “philosophy and practice of education” was “detrimental” to the best interests “of his students” I think it would be informative and beneficial to show the results of that survey.
Thirty of plaintiff’s students had been selected at random by the principal to participate in the survey and were asked to write “an anonymous evaluation of his effectiveness as a teacher,” which was the first proposition propounded. The rating was to be made on the basis of “very poor,” “poor,” “average,” “good,” and “very good.” Of the 30 students, 14 rated plaintiff “very good,” 10 rated him as “good,” 3 rated him as “average,” and 3 rated him as “poor.” None rated him as “very poor.”
By way of summary of the comments of the 24 students rating plaintiff as “good” or “very good,” it was said that plaintiff’s teaching was stimulating; that he forced students to think; that he listened objectively to the students; that he taught them to be tolerant of those who disagreed with their own thinking; that he held their interest with timely and thought-provoking material; that students could express themselves in his class “without being threatened by the almighty grade if you disagree”; and that he communicated with the students and he inspired study. The comments of the six students rating plaintiff as “average” or “poor” were those emphasized by the board.
It is also appropriate to point out here that in addition to the survey plaintiff also called three of his students at the hearing who testified that plaintiff was an excellent teacher, and three of his fellow instructors who also testified in his behalf regarded him as a good teacher. Such testimony, however, even though uncon-tradicted was brushed aside without comment by the board in favor of the conclusions expressed by the six students in the survey. It is also worthy of note that the board produced no testimony by a student or by a professional on the basic issue of plaintiff’s competence and quite noticeably failed to call plaintiff’s immediate superiors, the principal and superintendent of the high school, to testify as to their evaluation of plaintiff’s competence as a teacher. The only inference that could be drawn.on that state of the record was that plaintiff was a good teacher and the board so recognized. Noticeable also is the fact that, so far as this record shows, plaintiff’s competence as a teacher had never been questioned until the time he was called before the board to answer for his conduct.
Returning again to the survey, the next question propounded was “Has his influence on your thinking and behavior been a wholesome one?” Of those answering the question, 19 students answered “Yes”; 5 answered “No”; 6 answered “Don’t know.” The students then were asked “Has his influence on the thinking and behavior of other students been a wholesome one?” To this question 6 answered “Yes”; 3 answered “No”; and 15 answered “Don’t know.” The third question was “Does he promote activities or behavior that you feel are questionable?” With respect to this 14 students answered “No”; 7 answered “Yes”; and 5 answered “Don’t know.”
The board in its analysis of the results of the survey apparently took the answer of the 19 students voting “Yes” on the ques*496tion of plaintiff’s “influence” on their thinking as support for its conclusion that plaintiff was influencing the students to accept his beliefs when the fact is that the greater majority of those 19 stated that his “influence” was positive and beneficial. Even the students making the remarks emphasized by the board stated or indicated that it was only the other students and not they who were being influenced to their detriment.
The foregoing demonstrates to me at least that the board made no fair or reasonable analysis of the portion of the record on this phase of- the proceeding, and yet it is obvious from its findings and conclusions that its order of dismissal was predicated in a large measure upon the matter under discussion. I would hold on this ground alone that the plaintiff was prejudiced by the arbitrary and capricious action of the board and its order must be reversed.
APPEARANCE AND DRESS
Whether or not this incident formed a basis for reversal is not too important in view of the other prejudicial errors I have already discussed. It does, however, have significance with respect to similar future proceedings and for that reason merits some discussion. Wholly aside from plaintiff’s argument on the constitutional right of a teacher to privacy, plaintiff demonstrates from the record that the board was clearly in error in injecting this matter into the proceeding.
What the board did here in substance was to take judicial notice without so advising plaintiff of the observations made by its members of plaintiff’s appearance on occasions prior to the hearing which, of course, in the first instance was violative of § 9-276.26(d) of the A.P.A. More importantly, the board introduced no evidence at the hearing as to when and where these observations were made and what plaintiff’s appearance was at those times. From the record it appears that the superintendent, the principal, and members of the board knew of plaintiff’s manner of wearing his hair, beard and dress prior to the renewal of his contract and yet it is apparent that none of them regarded it at that time as “inappropriate for the teaching profession.”
For purposes here I think there is no need to explore plaintiff’s contention on his asserted deprivation of his protected right of privacy. His other contentions are sufficient to dispose of this matter, and when that is apparent we ordinarily refrain from deciding such questions. Plaintiff’s other contentions are that he had no notice either before or at the hearing that these matters were going to be inquired into; that he was afforded no opportunity to defend against such charges; that the finding is not supported by evidence; and that the board had adopted no rules or policy establishing standards which the board found and concluded were violated by the plaintiff. All of these contentions, as shown above, were amply sustained by the record. In my view the plaintiff here again was not afforded due process.
While the board states in its order that plaintiff’s appearance “did not afford grounds for removal” it did not conclude and cannot say in the face of its order as a whole and its injection of this matter under the circumstances described that it gave no consideration to his appearance in reaching its ultimate conclusion that plaintiff was an incompetent teacher. As I mentioned above, the board went out of its way to place emphasis on statements made by students in his survey, such as plaintiff was a hippie type, anti-establishment, and unpatriotic. No doubt it felt, which is understandable, that plaintiff’s appearance was an additional thread with which “to sew the garment” of incompetency on the plaintiff as it is regarded by most as the flaunting of an emblem depicting such things. Nevertheless, if the board had a basis for charging that plaintiff’s appearance was “inappropriate for the teaching profession” and “did not set a proper example for high school students,” there was *497a proper way for it to proceed and it has not done so.
CONCLUSION
From the foregoing it is apparent to me that the trial court was in error in confirming the action of the board. I would reverse the trial court’s order with instructions to remand it to the board with a direction to expunge from its records the blight cast upon plaintiff’s competency as a teacher, which would for all practical purposes put the matter to rest.
APPENDIX
Once upon a time in the land of Pep there lived eight innocent Patriots and their 35 Followers. These lovely people had promoted patriotism through out the land for many years successfully. All across the land the villagers knew the names of these eight leaders, Lechar, Nalo, Atina, Enij, Anit, Lunev, Neran and Neren, and when the Patriots came to town the townspeople rejoiced and cheered their appearance.
Then, horror of all horrors, one year the Plague hit in the form of a mean master over the Eight Patriots. The Eight Patriots were crippled and nearly destroyed by the Meany Master, who thought her ways were but fair. At each rally throughout the year, the Patriots, not their usual selves, cried and wept as the Meany Master shot ’em down. The Eight Patriots became weak and pale and definitely downcast. Finally, after numerous tortures, Lynev was removed from the Group for a weekend. Being terribly loyal, Lynev managed to attend the rally that weekend. The Meany Master glared at her during the entire rally, while Lynev smiled and tried to be as inspiring as possible.
The next day Lynev begged for Meany Master’s forgiveness, pleading, “Oh, Meany Master, let me again join the Eight Patriots for they are my Friends and my whole life. I enjoy so much agitating the crowds each weekend. It is my duty, my pledge. Oh, please, Meany Master, may I return?”
“We’ll talk about it,” the Meany Master replied calmly.
The 35 Followers of the Patriots were also being abused during this time of unrest. Their bus was taken away only to be used for short trips to relatively unimportant areas. Meany Master did offer an excuse however, “I don’t got time to go with yer, yer little jerks.”
The 35 Followers cried and cried as they were shot down time after time, but still Meany Master persisted her tormentation.
Soon it became evident that Meany Master was of below average intelligence. Her vocabulary consisted of 2 sentences, “We’ll *498talk about it,” which never seemed to happen somehow, maybe because “I don’t have time” got in the way. The Eight Patriots began devoting more and more of their precious time conspiring against Meany Master instead of practising their agitation schemes, which is really what they should have been doing. They beban calling peace talks in hopes of breaking down Meany Master’s Evil Rules.
(Note: Evil Rules. Definition rules which were set up by the Meany Master as the Supreme Law of the Land for the preservation of power by the Meany Master, and endorced by Meany Master on her Finger of Fate, which i may condescend to add was Fickle.)
The negotiations began peacefully enough; Meany Master always refused to come, retorting “I don’t got time!” Finally, after much deliberation, Meany Master consented to “talk it over.” The date was set and the Eight Patriots and 35 Followers felt they were finally making progress.
At the first peace talk, the Eight Patriots were shocked out of their ever-lovin’ uniforms. Meany Master, instead of realizing the foolishness and unnecessity of the Evil Rules added a few choice gems to the ever growing, ever constant list.
Number (1): Thou, that is, the Eight Patriots,. shall not attend any rally in the land of Pep with unshined saddle shoes on their feet. Note also that Thou shall always be in attendance with saddle shoes on the feet.
Number (2): Thou, that is the Eight Patriots will not make substitutions if Thou plans to be gone without the permission of Goddess, i. e. Meany Master.
Number (3): The Eight Patriot Squad will not be seen in public at rallies with slacks, i. e. levis, pants covering their bodies. Even if the temperature be -100°F, breaking of the Rule will not be tolerated.
Naturally, the Eight Patriots were extremely disappointed. All their weeks of plotting, and planning were now destroyed by Meany Master. Was there to be no escape from this endless torture?
The Ray of Hope came in March — District Rally. At District Rally the Patriots and Followers from all over Pep gathered to campaign and shout for a weekend. The Eight Patriots were elated by the news that Meany Master had consented to let them take the Followers to this glorious adventure. Preparations were immediately begun, and the Eight Patriots again sang their song in tune “Oh, S-H-E-R-I-D-A-N, Sheridan all the time!” Cheerily, the Followers busies themselves with agitation routines to aid the Eight Patriots in their quest of fantastic showings. Reservations for housing were made in a lovely cottage, protected by flowing willows and climbing ivy.
A slight bomb dropped as Meany Master, (now referred to as Not-so-Meany Master), announced the Followers would have to fork over 175 dollars for the chaperones. Naturally, an outrageous price for 4 people, but the Followers were eternally grateful that they could attend District Rally and suppressed any pangs they felt as they dug up the hard earned bread.
Still progress on District Rally continued at an amazing pace. The Eight Patriots kept their rosy red cheeks and bouncy appearances. The Followers wrote new songs like, “Mighty, we are mighty great!” and “Sock it to ’em!”
No on even considered the Evil Rules. They were assumed to have been removed. Unfortunately, the Meany Master had mimeographed them on long, long sheets of paper and titled them “THE SIX COMMANDMENTS”. Adding to the collection some which were even more horrible than the Patriots could imagine in their wildest nightmares, the Meany Master passed them out one day at the Follower Enthusiasm meeting. “Here, yer little jerks,” the Meany Master began. The whole group was shocked — Meany Master was learning some new words!! “I have typed up the *499Rules for you which you must obey at District Rally. Merry Adolf Hitler’s Birthday!”
The Evil Rules were passed around and the Faces of the Followers grew longer and longer as the recorder read each terrifying commandment:
1) Thou shall not ride in autos, that is automated vehicles whither they be golf carts or cars.
2) Thou shall not socialize, i. e. be in the rooms of other Patriots and Followers.
3) Thou shall not be seen in public with slacks, i. e., levis, pants covering the bods. Even if the temperature reach -100 F the breaking of this rule shall not be tolerated.
4) Thou shall wear only the official uniform of the Sheridan Patriots and Followers while in public, i. e. all the time.
5) Thou shall wear only saddle shoes, i. e. brown and white on your feet. Said saddle shoe footwear will be shined and will look decent, i. e. new.
6) Any infraction of any of these Rules will result in the criminal being sent home.”
With tears in their eyes, the Eight Patriots and Followers dragged themselves to their respective homes. “Good Grief,” the Followers began to say. “Good Grief, Good Grief . . . ”
But, the Eight Patriots were trying their best to be cheerful. Lechar began the coaxing, “Oh, come on. Followers. Be ye cheery. We will triumph at the rallies. We’re Number One!”
“Yes, Yes,” the Followers yelled and began to chant, “We are Number One, we’re number one. . . . ”
So plans continued and the Eight Patriots, Followers, and Meany Master trav-elled to District Rally singing songs of cheer, “Sheridan’s gonna beat ya, oh yea.
Once at District Rally, Evil Rules Infractions began but suprisingly not by the Patriots or Followers; rather by Meany Master. Meany Master rode in cars, Meany Master socialized, Meany Master wore pants. When asked about Meany Master’s delinquency, she was rumored to have answered, “I didn’t sign those rules, yer can’t do nothing to me.”
One cold day, i. e. -100 F, when Sheridan had an evening rally, Lechar, Atina, and Nalo went to view the town but ah, for freezing their behinds off, did not wear their micro-short skirts and sweaters, i. e. their uniforms, rather they ware the sinful levis. . OH HORRORS, DEAR COMRADES!!!!
Meany Master say them with her radar eyes and promptly informed them that they were no longer Patriots and were to be gone by the next morning.
The Patriots, knowing they had broken the Rules, were resigned to the fact they must go home, but to be removed from Patriot Squad!! Why, that was not part of the deal!!!!
When speaking to the victims, Meany Master is rumored to have said, “Give me your uniforms and don’t bother to remove the letters; I’ll mail ’em to yer, yer little jerks.”
“Oh, but Meany Master” (Meany Master was now Double Meany Master), Lechar pleaded, “Why must we be removed from the squad?”
“We’ll talk about it,” was the traditional reply.
But the talk never came about and at State Rally time, a substitute was sent to replace the lost Patriots, Lechar, Nalo, and Atina.
Moral: No, I don’t think I will tell you the moral. It is so obvious there is no reason but I will say this: “The poison pen, or pencil as the case may be, of SY strikes again!”