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DECEMBER 12, 1984




The basic issue in this appeal involves the constitutional question of free speech balanced against the substantial evidence rule in a teacher non-renewal case. Peggy G. Gates was not reemployed by the Board of Trustees of the Hattiesburg Municipal Separate School District (the Board), and appealed that decision to Forrest County Chancery Court asserting that her non-reemployment was because of her exercise of her constitutional right of free speech in speaking out against the Board, participation in teachers' organizations, and grand jury investigations. The chancery court reversed the Board's decision finding that non-reemployment was due to Gates' participation in constitutionally protected speech and ordered that Mrs. Gates be reinstated.

The School Board appeals and argues:

 (1) That the chancery court erred by substituting its judgment for that of the school board's where the school board's was supported by substantial evidence.

 (2) That the non-renewal decision would have been made even in the absence of Mrs. Gates teacher organization and grand jury participation.

 (3) That the non-renewal decision was made upon a rational basis to promote a legitimate educational interest.

 We reverse and reinstate the School Board's non-renewal decision.


 Peggy Gates had served as a school teacher within the Hattiesburg system for 18 years. She spent 6 years teaching third grade students, a total of eight years teaching fourth, fifth and sixth grade students and 4 years teaching eighth grade students. She was a member of and served as officer to the Hattiesburg Association of Educators (HAE) and was a member of the Mississippi Association of Educators (MAE). She was elected by fellow teachers to represent Mary Bethune Elementary School on the Professional Affairs Committee, a laison group between teachers and the school administration. Gates actively participated in the HAE, MAE, and Professional Affairs Committees in promoting improvements in her profession.

 Mary Buthene Elementary School principal, Pricilla Walker, refused to recommend Peggy Gates for reemployment for the 1981-82 school year. The grounds for such refusal were: (1) inadequate and/or improper classroom instructional skills; (2) excessive absences from the classroom; (3) refusal to abide by school policy with respect to leaves of absence; and (4) unprofessional conduct.

 (1.) This is the key point for the first reason for the non-renewal, i.e., improper classroom instruction. Mrs. Gates' sixth grade class contained three different reading levels, and each level used a different basic reader. Mrs. Walker directed Mrs. Gates to place each student physically within his/her group. It was suggested that the group be formed as a circle providing a better instructional environment. Principal Walker accused Gates of not following directives to organize her classroom for reading purposes according to the reading level of the students. Mrs. Walker discussed these matters with Dr. Spinks, Superintendent of Education.

 Gates answered this charge by stating that her students were in their proper groups, but instead of requiring each student to move his/her desk, she merely kept the desks in straight rows and allowed the students to change seating arrangements. She contended that this provided a good instructional environment with minimal class disturbance.

 Also cited as improper skills was excessive homework and improper testing. Charles Davison, professor at USM, had a son who was taught by Peggy Gates during the 1979-80 school year. Davison complained that his son was being subjected to excessive homework that amounted to no more than busy work. He stated that his son was often kept up until 11:00 or 11:30 at night attempting to complete his homework. Davison visited the school on one occasion and discovered Gates absent from the room. Davison's son had told him previously that she often left the room unattended. Davison's son related that he felt intimidated and his likeness for school was turning to hate.

 Based upon Davison's experience as an educator and what his son had told him, it was his opinion that Mrs. Gates should not be rehired as an elementary school teacher. Davison, however, had no knowledge of Gates' conduct during the 1980-81 school year.

 Gates countered these charges with proof that Davison's son was an A-B student and was very capable of handling the workload. She knew of his exceptional abilities and often encouraged him to enter essay contests, several of which he won or placed. Parents who testified in Gates' behalf had nothing but praise for her ability to motivate and educate their children.

 Under the self-improvement goal setting program, meetings were held between Principal Walker and the teachers of Mary Bethune in October and November, 1980. Mrs. Gates refused to set goals for herself, terming herself adequate in the areas evaluated. Mrs. Walker suggested that Gates participate in the inservice programs to increase instructional skills. She also suggested that Gates improve in areas of motivation of students. Mrs. Walker commended Gates for providing a conducive learning environment and establishing good rapport with her students. While testifying, Walker termed this as a compliment only upon the decor of the classroom.

 (2.) Excessive absences from the classroom was cited as another reason for non-reemployment. Principal Walker

 testified that Mrs. Gates suffered a diuretic problem and had to make frequent trips during the day to the bathroom. Gates stated that if such was the case she had Mrs. Lockett watch the children or obtain the teacher next door to watch. Lockett corroborated this, but stated that these absences often lasted for 10 to 15 minutes and occurred up to five times a day. Lockett also testified that Mrs. Gates frequently left the classroom to make or receive personal phone calls at times when she was not on break.

 One occasion cited by Walker as illustrative of this problem was when the HAE then asked the PEER committee to investigate the system. Mr. Rubinsoff, a representative of the PEER committee, contacted Mrs. Gates for an interview on November 19, 1980 at 1:30 p. m. On November 18, the principal, Mrs. Walker, was not present at the school. Elaine Lockett, the school secretary, was left in charge. Lockett, as well as Gates and other teachers, testified that this is normal procedure. Mrs. Gates notified Mrs. Lockett that she would be out of her room from 1:30 until 2:30 (the end of the school day) on the 19th. Mrs. Gates' regular break was from 1:05 until 1:35. Normally during this break time, Gates took her students to the library where they were watched. On this particular occasion, Mrs. Gates took the students to the library, and Mrs. Lockett obtained an aide to watch the children from 1:35 until 2:30. Four weeks later, Mrs. Gates received a letter of reprimand from Mrs. Walker for failure to notify her about the absence.

 (3.) In addition to inadequate instruction methods and excessive absences from the classroom, Mrs. Gates was accused of taking three days personal leave without approval. Mrs. Gates' husband, Bob Gates, was a vice-president of Hattiesburg Grocery Company. His employer, W. T. Russell, required him to go to an annual convention held in March of each year in Chicago. Russell highly recommended that Bob take Mrs. Gates to the convention. Mrs. Gates had gone each prior year in which Bob was required to go. Mrs. Gates followed the proper procedure in submitting the request for personal leave form to her principal, Walker, asking for leave on March 16, 17 and 18, 1981. This request was returned to her denied by Superintendent Spinks, his reason being that this particular request was becoming an annual occurrence. Gates was aware that she had accumulated over 20 days of sick leave. Feeling that she was not being treated fairly, Gates talked with Board member, Charles Phillips, who advised her of a new leave policy which had been adopted which required the deduction of $25.00 per day from a teacher's salary to pay for the substitute teacher. Phillips advised her to resubmit her request with the new policy

 attached, which she did on February 23, 1981. Mr. Russell contacted Phillips and explained to him the situation with the convention. He felt that he had put Mrs. Gates in a ...

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