they were brought only for the purpose of harassment and retaliation, with no hope of eventual success. Plaintiff's affidavit regarding the political motivation of Walter's action and the Board's other recent moves is unrefuted. It describes a clear pattern of adverse political actions taken against vocal members of Y.O.U., the Board's political opponents. Moreover, there is evidence that Walter's action against Wichert was particularly fraught with political implications at the time that it was taken, given that Y.O.U. and the Alliance were apparently to be pitted against one another in an upcoming local election. Plaintiff's Brief at 11.
Plaintiff has been a teacher in the Union City school system for twenty-five years and has attained public recognition as Mayor. There is no indication that any other disciplinary action has ever been taken or contemplated against him by past school boards. Nor is there any suggestion in the record, apart from Walter's complaint, that plaintiff is unfit as a teacher. The complaint itself lists no charges other than those stemming from Wichert's comments at the political rally. It contains no claim that Wichert is unfit as a teacher on any ground other than the claims based on his political speech. Cf., Williams v. Red Bank Board of Education, 662 F.2d at 1010 (charges against teacher in tenure proceeding included striking and publicly humiliating pupils, as well as making "racist and anti-Semitic remarks" at public meeting). Most important, as the court will elaborate below, the charges against Wichert, based solely on his political speech, are patently meritless and should have been recognized as such by the School Board: Wichert's comments at the rally were clearly and without question protected first amendment speech.
In sum, the court finds strong evidence of bad faith and political motivation in the facts which are unrefuted in the record before it. This evidence indicates not only that the charges were filed for improper reasons, but also that at least the first tribunal before which these charges will be considered, the Board of Education of Union City, bears the taint of bias against the plaintiff. Under these circumstances, nothing requires the court to defer to the state proceedings until the plaintiff's case eventually finds its way to an unbiased tribunal within the state system. Cf., Gibson v. Berryhill, 411 U.S. at 577 (fact that judicial review would eventually be forthcoming did not require deference to state administrative board found incompetent by reason of bias). In light of the evidence of bad faith and bias, the court finds that it is not barred from issuing the requested relief. Cf., Fitzgerald v. Peek, 636 F.2d 943; Shaw v. Garrison, 467 F.2d 113; Gibson v. Berryhill, supra.2
II. The Merits of Plaintiff's Application
There is no question that public school teachers, like other public employees, "may [not] constitutionally be compelled to relinquish the first amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public school in which they work." Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). See also Connick v. Myers, 461 U.S. 138, 144-45, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir. 1984) (state could not deny public employment to individual on basis of exercise of first amendment rights), citing Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) (public employee, with or without contractual right to retain job, cannot be dismissed for engaging in protected speech). The free speech rights of public employees may be limited only where required due to "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568.
The two leading Supreme Court cases in the area are Pickering, supra, and Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684.
In Pickering, the plaintiff teacher had been dismissed from his position by the Will County, Illinois Board of Education for writing a letter to the editor of the local newspaper which was critical of the Board and the district superintendent of schools in revenue matters. The letter accused the defendant officials of having a " 'stop at nothing ' attitude," of making threats and "insult[ing]" voters, of "neglecting the wants of teachers" and of "totalitarianism." Appendix to the Opinion of the Court, Id. at 575-78. The Court found that plaintiff's statements directed at the Board and superintendent could not be per se harmful to the operation of the schools because the interests of the schools and those of the Board were not necessarily identical. In addition, the statements were held not to threaten either the maintenance of discipline by supervisors or harmony among Pickering's coworkers, two legitimate concerns of the state, because Pickering's "employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning." Id. at 570. Finally, and most important, the Court found that plaintiff's letter dealt with a matter of public concern. Given these circumstances, Pickering's statements could not "furnish the basis for his dismissal from public employment . . . absent proof of false statements knowingly and recklessly made." Id. at 574. Even the fact that some of Pickering's specific statements were false as a result of his good faith error did not deter the Court from upholding Pickering's right to have made them.
Connick did not alter the basic framework of Pickering, but merely amplified and clarified the various factors to be considered. In Connick, the Court emphasized that a public employee's speech must have touched upon a matter of public concern in order to justify review in a federal court of an adverse personnel decision on the basis of that speech. 461 U.S. at 146-47. It held that the question of "whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement. . . ." Id. at 148. The Court suggested that an employee's statement raises questions of public importance per se where the employee is seeking to bring to light "actual or potential wrongdoing or breach of public trust" by government officials, or to publicize the fact that a public agency is "not discharging its governmental responsibilities." Id. at 148. The Court specifically held that a statement regarding an employer's efforts to coerce employees for political reasons also raises issues of public concern. Id. at 149, citing Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980) (public official could not dismiss employees on basis of political affiliation where such affiliation was not an appropriate requirement for performance of the job involved); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (public employee could not be dismissed for failing to submit to political coercion).
Once the public importance of an employee's statement is established, according to Connick, the court must balance the employee's speech interest against the public employer's interest in "effective and efficient fulfillment of its responsibilities to the public." Id. at 150. The Court deemed the "manner, time and place" of the speech activity to be relevant in the calculus, including whether the speech occurred in the place of employment, or outside, and whether it arose in the context of an employment dispute involving application of a challenged policy to the speaker, or in a broader context. Id. at 153. The Court explicitly distinguished the facts of Connick, involving a disgruntled employee's distribution of an employee grievance questionnaire, at the office and on office time, from instances in which the employee's speech "more substantially involved matters of public concern," and transpired on the employee's own time. Id. at 152, 153 n.13.
Nothing in Connick in any way challenges or questions the Court's holding in Pickering, therefore; if anything, Connick reiterates the holding in Pickering that a public employee cannot be terminated for publicly criticizing superiors with whom he does not work directly, where the criticism involves a question of public concern. It is inescapable to the court, and should have been equally inescapable to the Board, that the facts of the instant case are on all fours with those of Pickering and implicate none of the Court's concerns in Connick.
First of all, like Pickering's, plaintiff's statements were addressed to a matter of general concern, indeed, a matter of such concern that it was a major topic among the 300 people gathered for the political rally in question, and generated a banner headline in the Hudson Dispatch the following day. Cf., Anderson v. Central Point School District No. 6, 746 F.2d 505 (9th Cir. 1984) (teacher-coach's letter to school board concerning athletic policies addressed matter of public concern and were protected under first amendment, where school athletic policies had become focus of public debate); Bowman v. Pulaski County Special School District, 723 F.2d 640 (8th Cir. 1983) (statements by assistant coaches regarding corporal punishment imposed on students by head coach in context of public debate constituted protected speech). Plaintiff's comments were aimed at exposing the Board's abuse of its powers for political reasons. Cf., O'Brien v. Town of Caledonia, 748 F.2d 403 (7th Cir. 1984) (police officer's discussions with judicial officials and response to questions from media charging that police department's handling of citations was politically motivated constituted speech protected under first amendment);
see also Brockell v. Norton, 732 F.2d 664 (8th Cir. 1984) (first amendment protected police dispatcher's disclosures of fellow employee's misconduct); Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983) (first amendment protected county employee's allegations of inefficiency, waste and possible fraud in Division of Motor Vehicles); Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216, 225 (3d Cir.), cert. denied, 451 U.S. 986, 68 L. Ed. 2d 844, 101 S. Ct. 2320 (1981) (fact that faculty criticism of university's retrenchment policy fell within scope of first amendment protections was "too evident to require any discussion").
Second, like Pickering's, plaintiff's speech occurred off school grounds and on plaintiff's own time. Cf., Czurlanis, supra (statements at public meeting open to all citizens was protected); Waters v. Chaffin, 684 F.2d 833 (11th Cir. 1982) (police officer's disparaging words about police chief spoken after he had left work, was out of uniform and out of department's jurisdiction was protected speech). Like Pickering's, plaintiff's comments were aimed at the Board of Education, with which he does not work directly, at least in his capacity as a teacher. Cf., Czurlanis, 721 F.2d at 106-7 (mechanic's comments aimed at county administrators who did not supervise him directly would not disrupt functioning of public agency), citing McGee v. South Pemiscot School District, 712 F.2d 339, 342 (8th Cir. 1983) (teacher's criticism of school policies aimed at school board would not affect his ability to function given that school board members were not teacher's immediate supervisors); cf., Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir.), cert. denied, 431 U.S. 937, 53 L. Ed. 2d 255, 97 S. Ct. 2649 (1977) (first assistant district attorney could constitutionally be dismissed for charging District Attorney with dishonesty because of confidential relationship between the two). As in Pickering, there is no evidence here that plaintiff's effectiveness as a teacher has been impaired as a result of his comments, cf., Swilley v. Alexander, 629 F.2d 1019, 1021 (5th Cir. 1980) (court found no evidence that severe discipline or personality problems would arise because of teacher's criticism of principal, even if principal were plaintiff's immediate supervisor), nor is there any indication that plaintiff's comments, as opposed to the Board's actions themselves, will "materially and substantially interfere with the requirement of appropriate discipline in the operation of the [school system]." Trotman, 635 F.2d at 230; cf., Czurlanis, 721 F.2d at 107 (evidence indicated that any disruption of the Division of Motor Vehicles was "primarily the result, not of the plaintiff's exercise of speech, but of his superiors' attempt to suppress it"); see also Monsanto v. Quinn, 674 F.2d 990, 997 (3d Cir. 1982) (small amount of disruption caused by employee's writing and release of letters critical of public employer to news media did not tilt balance away from first amendment protection).
Finally, like Pickering's, plaintiff's statement could not be construed as knowingly or recklessly false, in Wichert's case, because they were chiefly expressions of opinion rather than statements of fact. In addition, there has never been any evidence submitted to indicate that any factual component of plaintiff's comments, e.g., his allegations of political motivation, were not well founded. In any event, even if plaintiff's statements were mistaken, they fell within the purview of the first amendment. Cf., Trotman, 635 F.2d at 225-26 (fact that plaintiff's statement in telegram to governor accusing university president of being " 'inhumane', vicious', 'vindictive', and 'arrogant with power given to him by a weak Board '" might be "misguided or obstinate . . . does not derogate from the status of the expressions as speech within the First Amendment"). As in Pickering, therefore, it is clear that plaintiff's comments cannot constitutionally form the basis of any disciplinary action against him.
Having established that Younger does not bar injunctive relief in this case because of the school board's evident bad faith, and that plaintiff's comments were protected first amendment speech, the other prongs of the test for preliminary relief simply follow. First of all, Younger establishes that a bad faith prosecution of an individual for exercising speech rights amounts to "irreparable injury" in the equitable sense. See also Wilson v. Thompson, 593 F.2d at 1381 (irreparable injury is established as matter of law where plaintiff demonstrates that state prosecution was brought in bad faith and for purposes of retaliating against exercise of protected right); Shaw v. Garrison, 467 F.2d at 120 (showing of bad faith or harassment is equivalent to showing of irreparable injury because of injury to federal right of freedom from bad faith prosecutions). Even beyond the irreparable injury caused by the continuance of a bad faith prosecution, however, is the irreparable chilling effect on the plaintiff's exercise of free speech during the pendency of the charges against him. Pickering, 391 U.S. at 574 ("threat of dismissal from public employment is . . . a potent means of inhibiting speech"); Columbus Education Ass'n v. Columbus City School District, 623 F.2d 1155 (6th Cir. 1980) (disciplinary actions had chilling effect on teacher's exercise of free speech); McGill v. Board of Education, 602 F.2d 774, 780 (7th Cir. 1979) (same). The plaintiff is thus clearly entitled to the extraordinary relief sought here.
Finally, there is no countervailing public interest or interest of any third party which would militate against granting this relief. The state "by definition does not have any legitimate interest in pursuing a bad faith prosecution brought to retaliate for or to deter the exercise of constitutionally protected rights." Wilson v. Thompson, 593 F.2d at 1383. In fact, the public interest lies instead in encouraging "free and unhindered debate in matters of public importance -- the core value of the Speech Clause of the First Amendment," rather than in chilling debate. Pickering, 391 U.S. at 573. In addition, the court's analysis of the protected character of plaintiff's speech establishes that the school system has no substantial interest in prosecuting the tenure charges against plaintiff. Indeed, the only real interest of third parties in the prosecution of those charges is the Board's interest in retaliating against plaintiff and chilling his further speech. Manifestly, this is not an interest which deserves any protection in this court. In consideration of all of these factors, the court will enjoin the defendants from pursuing any further the charges pending against plaintiff.
Any infringement upon free speech should be carefully scrutinized. Certainly efforts to quell disclosure of the use of an educational system for political purposes must be condemned. If indeed important decisions regarding teaching assignments are made to injure one's political enemies or to aid one's political allies, such activities require open debate free of the fear of retaliation or discipline. If the statements prove to be unfair, better their author be shown to be in error in public, rather than be punished in private.
This matter having been opened to the court by the plaintiff, Arthur Wichert, on the return date of an Order to Show Cause why the relief sought in the Complaint should not be granted; and the court having considered the briefs, affidavits and arguments of counsel; and for the reasons expressed in the Opinion of the court even dated herewith;
It is on this 22 day of April, 1985,
ORDERED that the speech of Arthur Wichert referred to in the charges filed against him by the defendant Bruce D. Walter, President of the Union City Board of Education, dated March 8, 1985, be and it hereby is declared to be speech protected by the first amendment to the United States Constitution which cannot constitutionally form the basis of any disciplinary action or tenure proceedings by defendants; and it is further
ORDERED that the defendants be and they hereby are preliminary enjoined from taking any further action to prosecute the above-referenced charges against the plaintiff.