author: PER CURIAM: CLARK, Circuit Judge

text:
    Billy D. COOK et al., Plaintiffs-Appellants, v. Robert W. HUDSON, etc., et al., Defendants-Appellees.
    No. 74-1038.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    Rehearing and Rehearing En Banc Denied July 3, 1975.
    See 515 F.2d 762.
    John B. Farese, Ashland, Miss., for plaintiffs-appellants.
    Will A. Hickman, S. T. Rayburn, Oxford, Miss., for defendants-appellees.
    Before COLEMAN, CLARK and RONEY, Circuit Judges.
   PER CURIAM:

Appellants are three school teachers formerly employed in the Calhoun County, Mississippi public school system. Each was refused reemployment for the 1973 — 74 school year by the Calhoun County Board of Education pursuant to an unwritten board policy that prohibited the hiring of any teacher whose own children did not attend the public schools. At the time the hiring decision was made, appellants’ children were enrolled in the Calhoun Academy, an all-white, secular private school located in Calhoun County. Pursuant to the policy, defendant Hudson, the principal of the Attendance Center at which plaintiffs taught, did not recommend plaintiffs for renewed teaching contracts for the 1973— 74 school year, a prerequisite to reemployment under Mississippi law. The court found that “[t]he sole reason for refusal [to recommend] was that the plaintiffs, otherwise qualified to continue their teaching duties, stated that they could not comply with the Board’s policy.” Shortly before the opening of the 1973-74 school year, plaintiffs brought this action for reinstatement, back pay and monetary damages, claiming that imposition of the Board’s policy violated their First Amendment right to freedom of association and Fourteenth Amendment rights to due process and equal protection. The district court construed the policy to apply only to teachers with children enrolled in the segregated Academy and upheld it as a justified part of the Board’s effort “to eliminate racial discrimination and remove its pervasive influence from the county’s public schools.” Cook v. Hudson, 365 F.Supp. 855 (N.D.Miss.1973).

I.

By order dated August 9, 1968, the district court instructed the Calhoun County Board of Education to begin the transition from a dual to a unitary school system. In addition to establishing a timetable for desegregating each grade, the court’s order set out guidelines to be used by the school board in making faculty employment decisions during the transition period and thereafter. These guidelines prescribed remedial measures to correct the prior practice of faculty segregation. The court further enjoined the Board to take affirmative steps to eliminate racial discrimination from the public schools and to bring about a unitary school system within the county. The timetable called for full desegregation of the school system by the 1970 — 71 school year; no one has suggested that this deadline was not met.

On a factual basis more fully developed in its opinion cited above, the district court found that “Calhoun Academy is a racially discriminatory institution formed in the wake of public school desegregation to provide a haven for segregated education” and that “the dominant, if not sole, reason why each plaintiff enrolled his or her children in Calhoun Academy was to avoid the desegregated public school system.” The court also found that prior to the establishment of Calhoun Academy no private school, either religious or secular, had ever existed in the county, and none except the Academy existed at the time the policy was promulgated.

When the Board decided on the challenged policy in November 1972, eight public school teachers had children enrolled in Calhoun Academy. Prompted by the concern that a proper accommodation to the court’s desegregation order required a faculty “totally committed to a desegregated school system”, and encouraged by a Justice Department letter seemingly approving its proposed action, the Board verbally agreed to this policy:

Prior to the employment of a new teacher, or the reemployment of an existing teacher, the children of any such teacher, if living in Calhoun County, Mississippi, will be required to attend the public schools of Calhoun County or said teacher will not be employed or reemployed.

Board members testified that although more broadly stated, the policy was fashioned with only Calhoun Academy in mind. In evaluating plaintiffs’ constitutional claims, the court below limited its consideration to the policy terms “intended by the board and applied to the plaintiffs”, and expressly declined to reach any potential question that might be raised by application of the policy to a teacher whose children attended a racially nondiscriminatory school. 365 F.Supp. at 859-60. The district court’s approach of reviewing the policy narrowly as it was intended and applied, rather than broadly as it was adopted, has the pragmatic virtue of facing up to the real issue between the parties and producing a resolution of that issue on its merits now.

Although the president of the school board testified that patronage of the Academy by public school teachers had been a source of controversy in the community, the keystone to defendants’ justification of the policy (and the district court’s approval) came from the testimony of two experts in the field of educational psychology. Both were of the opinion “that the challenged policy was significantly related to a teacher’s effectiveness and job performance [because] students in desegregated classes are likely to perceive rejection, and experience a sense of inferiority from a teacher whose own children attend a nearby racially segregated school, and [such students will] be inclined to perform at a lower educational level”. 365 F.Supp. at 860. Neither expert had evaluated plaintiffs individually. One had been director of a three-year project the aim of which was “to increase the interaction between the school and the community and the student and the teacher in public schools in Mississippi”. His investigation had included schools in Calhoun County, although not the Calhoun City Attendance Center at which plaintiffs taught. Both experts agreed that the Board policy was “reasonable”, based on psychological principles of “negative reinforcement” and “teacher expectation”. One of them explained:

A. Okay. The kind of thing that operates in a classroom is that a major variable in learning is how a teacher relates to a student. There is ample indication from both research, my own and others, and just observation on my part that a teacher who is perceived by students as rejecting the public school system will have a difficult time, for example, reinforcing the learning that would go on in the classroom. It would be a perception on the part of students of a difference from the students, and I think this would be particularly true with the black students.
Q. What would be the relationship of this rejection and perception to academic achievement?
A. The major thing is that a teacher is the major — or a major reinforcer of learning. And so that if there is a discrepancy in the way that a student — or let’s say if there is a negative perception on the part of the student of the teacher, this detracts from the teacher’s ability to reinforce learning.
Q. Now, by reinforcement, what are you speaking of in terms of this reinforcement?
A. It’s an operational principle in psychology that holds that a teacher, by such things as paying attention to students, showing respect, trust, acceptance has the potential for increasing or having a positive effect on learning.
Q. Is this what—
A. That’s basically what reinforcement is.
Q. Is this what educational psychologists would refer to as positive or negative social reinforcement?
A. Right.
Q. And what would be the effect of a negative social reinforcement?
A. The negative social reinforcement is shown in situations where the possibility exists for a teacher not having the potential or the possibility as a functional teacher to reinforce what goes on in an appropriate way in the classroom.
Q. Doctor Eicke, would a student perceive a teacher who sent their own children to a private school — a public school student, would this be perceived as a negative social reinforcement?
A. I think it would.
Q. Doctor Eicke, what do psychologists mean when they refer to teacher expectations?
A. Teacher expectation is an area that has been studied in educational psychology dealing with a phenomenon in which what is expected of students is what they tend to do. And my contention would be that if a teacher expected less from students that the students would tend to perform at a lower level; and conversely, if the teacher expected more, the students would tend to perform better. This need not be a conscious kind of thing. In fact, it usually isn’t. And I would think that a teacher that rejects the public school system as acceptable for [the teacher’s] own children would set lower expectations [for the public school students] that [the teacher] would then come in contact with.

He added that “[a]nything that detracts from a positive perception of [the] teacher may affect learning.” The other expert repeated and further explained similar opinions.

The district court found in this evidence a sufficient “rational relation” between the challenged policy and the goal of public school desegregation to answer plaintiffs’ equal protection objection. However, while apparently conceding that the Board’s policy infringed plaintiffs’ First Amendment rights, the court noted that those rights “may not be considered in isolation”, that they “must be applied in the light of the special circumstances of the environment of the particular case”, and that “where the exercise of First Amendment rights impairs the teacher’s effectiveness, or conflicts with the performance of her job, the school board may lawfully refuse to rehire the teacher”. After quoting from the Supreme Court’s opinion in Adler v. Board of Education, the court concluded:

It necessarily follows that if the board’s policy is a reasonable and constitutional regulation, plaintiffs may not complain of the consequence of not being rehired as public school teachers for having exercised their right to send their children to a private school.

The court evidently implied a finding that the policy was constitutional within its determination that the rational relation test had been met.

The Per Curiam opinion to this point was prepared by Judge CLARK. All members of the Panel concur in it. After extensive conference and individual judicial study of this obviously difficult case, our inability to agree on a unanimous opinion stems from our disagreement as to (1) whether the Judgment of the District Court should be affirmed and (2) the reasons for our individual conclusions. From this point forward the members of the Panel will state their views separately, with the result that the Judgment of the District Court will be affirmed.

SEPARATE VIEWS OF CIRCUIT JUDGE COLEMAN

With deference to the views of my Brothers, I vote to affirm the judgment of the District Court, but for reasons different to those there assigned. Under the authority of United Public Workers v. Mitchell and United States Civil Service Commission v. National Association of Letter Carriers, hereinafter cited, I would have dismissed the case for failure to raise a substantial constitutional question.

Quoting from Mitchell:
“Congress and the President are responsible for an efficient public service. If, in their judgment efficiency may be best obtained by prohibiting' active participation by classified employees in politics as party officers or workers, we [the Supreme Court] see no constitutional objection.”

United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), “unhesitatingly” reaffirmed in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).

In the latter case the Supreme Court held that neither the First Amendment nor any other provision of the Constitution invalidates a law barring the following customary and ordinary First Amendment rights of those not shouldered with the responsibilities of federal employment: (1) organizing a political party or club, (2) actively participating in fund-raising activities for a partisan candidate or a political party, (3) becoming a partisan candidate for, or campaigning for, an elective public office, (4) actively managing the campaign of a partisan candidate for public office, (5) initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office, and (6) serving as a delegate, alternate or proxy to a political party convention.

“But, as the Court held in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), the government has an interest in regulating the conduct and ‘the speech of its employees that differ[s] significantly from those it possesses in ‘connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public ' services it performs through its employees’.” 413 U.S. at 564, 93 S.Ct. at 2890.
“There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.” Ibid.
“Neither the right to associate nor the right to participate in political activities is absolute in any event [citations omitted].” 413 U.S. at 567, 93 S.Ct. at 2891.

The right of the teacher-appellants to send their children to a private school, whether grounded in the Constitution or not, is not at stake in this appeal. Nobody is contesting their primary right to do so.

No racial bias is involved. The teachers are white.

There is no Singleton issue in the failure to re-employ them; this was not a reduction in force prompted by an effort to achieve unitary status.

The teachers did not have tenure.

There is no contention that the school board policy was pretextual or sprang from anything other than complete good faith. It applied to all teachers who had educable children and some of them complied with it.

There is no substantial evidence of the existence of any valid educational factor available at the private school, not also available at the public school.

The case then boils down to this:

Under the facts of this case, does the United States Constitution deny a public school board the authority to adopt and uniformly enforce a policy clearly designed, in good faith, to insure the undivided dedication of its teachers (and the appearance of that dedication) to the public school function? Under the authorities above cited, I respond that it does not.

Actually, those of the general public, who pay the taxes, who keep the public school doors open, and who depend on those schools to educate their children, have a right to expect undivided teacher dedication, free of any real or apparent conflicts of interest.

Here, the teacher-appellants seek to defeat that public right by saying that because they have a right to send their children to private schools they also have the constitutionally guaranteed right to be employed in the public schools in defiance of the considered judgment of the school board that such a practice is not good for the schools which they have assumed an obligation to foster and maintain.

I simply do not believe that the Constitution may be stretched so far.

We are not here dealing in isolation with the rights of parents as to the education of their children. This is only a springboard from which teachers (who also happen to be parents) are trying to jump to the desired result. We are confronted with altogether different claims: we are asked to hold as a matter of constitutional law that they may command for themselves employment in a public agency in defiance of the declared public policy of that agency, a policy which could have no possible purpose other than to promote the unity of, and public confidence in, the public school system. In such a collision of interest, the asserted “parental right” must yield. On balance, concerned as we are with the general, discretionary power of school boards to manage public schools, the board policy should prevail and I see nothing in the Constitution to forbid it.

I stand on what the Supreme Court said in Adler v. Board of Education (1952), hereinabove cited, that persons employed or seeking employment in public schools have no right to do so on their own terms, that to maintain the integrity of public schools as part of an ordered society school authorities have the right and the duty to screen teachers in a relevant manner, not inconsistent with basic civil rights.

For these reasons, I vote to affirm the judgment of the District Court. In so doing I find no necessity to put a “desegregation” gloss on the decision.

SEPARATE VIEW OF CIRCUIT JUDGE RONEY

We are asked to review a judgment in favor of school authorities who were sued by three former teachers for reinstatement, back pay, and other relief on the ground that the teachers were not rehired for unconstitutional reasons. I would affirm the judgment of the district court on the particular facts of this case on a very narrow ground.

Mississippi teachers are nontenured. School authorities may refuse to rehire a teacher “without any reason at all.” Thompson v. Madison County Board of Education, 476 F.2d 676, 679 (5th Cir. 1973). They may not refuse to rehire them, however, for an unconstitutional reason. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Plaintiffs held one-year contracts which expired at the end of the school year. They were not discharged. They were, on the other hand, not rehired. The plaintiffs had the burden of proving that the action of the school authorities in failing to rehire them was unconstitutional. I think they failed in such proof. I would rest an affirmance on the findings of fact of the district judge as they apply to these individual plaintiffs.

The court found as a fact that the dominant, if not sole, reason why each plaintiff enrolled his or her children in Calhoun Academy was to avoid the desegregated school system. This finding is not clearly erroneous. The court accepted the evidence that this conduct significantly related to the effectiveness and job performance of the teachers. The successful operation of the public schools as a unitary system under court-ordered desegregation was seriously challenged by the existence and public support of Calhoun Academy. The court found, without dispute, that the failure to rehire these teachers by the school authorities was for no other purpose than to strengthen local support for the public schools and to effectively implement the court-ordered requirement to change from a dual segregated school system to a unitary nondiscriminatory system. Under these circumstances, I would affirm the district court’s conclusion that the school authorities acted within their discretionary authority.

Whether similar action would be valid under less compelling circumstances, we need not decide. Although it would have been preferable for the school board to treat each plaintiff individually, and although the evidence is somewhat general rather than specific, I think that the district court had a sufficient base to apply the general evidence to the individuals. It appears to me it did this in fact, if not by specific language, when it assessed the individual testimony as to the reasons each gave for placing the children in Calhoun Academy. I would not get to the question of the validity of the general policy unrelated to this specific case of court-ordered desegregation. This case, to me, does not have broad implications.

CLARK, Circuit Judge

(dissenting).

I.

Plaintiffs claim that the challenged policy infringes their personal freedom as parents to choose the academic environment in which their children will be educated. This right received explicit judicial recognition in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), where it was expressed as “the liberty of parents and guardians to direct the upbringing and education of children under their control,” and has been repeatedly reaffirmed since as one of several “fundamental” rights falling within the constitutional guarantee of personal privacy. See, é. g., Roe v. Wade, 4l0 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Gris-wold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Whether viewed as a part of a citizen’s Fourteenth Amendment liberty or First Amendment freedom of association or a combination of both, the right plaintiffs’ claim is protected from state intrusion by the Due Process Clause of the Fourteenth Amendment.

As a fundamental right, the prerogative of parents to direct their children’s education supersedes the state’s more generalized interest in the public school system, and sustains the corollary freedom of private schools to exist and operate. “[A] State’s role in the education of its citizens must yield to the right of parents to provide an equivalent education for their children in a privately operated school of the parent’s choice.” Norwood v. Harrison, 413 U.S. 455, 461, 93 S.Ct. 2804, 2808, 37 L.Ed.2d 723, 729 (1973). This right exists without regard to the parents’ motives for choosing private over public education, or the popularity or social utility of the private school’s raison d’etre. See NAACP v. Button, 371 U.S. 415, 88 S.Ct. 328, 9 L.Ed.2d 405 (1963).

The scope of this parental right is not without limit, however. An accommodation must be reached whenever its exercise conflicts with the state’s interest in maintaining the general public welfare. “The parent cannot assert an absolute freedom to remove his child from all schooling, or to send him to a school where the curriculum includes not only mathematics but also the desirability and techniques of immediate violent overthrow of the government.” Green v. Connally, 330 P.Supp. 1150, 1167 (D.D. C.), aff’d sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971). To be sustained, an accommodation that infringes upon this parental right must be tested against certain well-established principles. “Where certain fundamental rights are involved, the court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. at 728, 35 L.Ed.2d at 178 (citations omitted); see Griswold v. Connecticut, supra; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). A statutory classification that infringes upon fundamental freedoms must be not merely rationally related to a valid public purpose, but must be necessary to the achievement of a compelling state interest. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

The state cannot avoid this scrutiny by offering the discredited dogma of Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952), that public employment which may be denied altogether may be conditioned upon the surrender of constitutional rights. That theory died aborning, see Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); and was recently retrenched in Perry v. Sindermann, 408 U.S. 593, 93 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Nevertheless, teachers occupy a unique position as the instruments by which the state delivers vital educational services to public school pupils. Because of this, their personal constitutional rights will often come in conflict with legitimate competing interests of the school boards who employ them. The task of the teacher is one of such sensitivity and public involvement as to justify employer evaluation on the basis of conduct both in and out of the classroom, Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958), and to sustain state inquiry into assoeiational activity beyond that which would be proper as to the ordinary citizen or employee. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971). While “[njeither students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” it remains equally true that “First Amendment rights [must be] applied in light of the special characteristics of the school environment.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).

That the Board’s policy imposes a substantial burden upon the exercise of a fundamental right is clear. Equally clear, however, is the legitimacy of the interest claimed by the Board and found by the court to be served by the policy, i. e., the elimination of racial discrimination and its “pervasive influence” from the public schools.

There is a compelling as well as a reasonable government interest in the interdiction of racial discrimination which stands on highest constitutional ground, taking into account the provisions and penumbra of the Amendments passed in. the wake of the Civil War. That government interest is dominant over other constitutional interests to the extent that there is complete and unavoidable conflict.

Green v. Connally, supra, 330 F.Supp. at 1167 (footnotes omitted). If this language be broadly interpreted and literally applied, the personal freedoms of public employees could be curtailed by any governmental action that remotely furthers “the interdiction of racial discrimination.” The footnote to the final sentence quoted above provides the crucial limitation: “Where there is a compelling government interest even First Amendment freedoms may be limited by appropriately confined lesser measures although they could not be prohibited directly.” 330 F.Supp. at 1167 n. 36, citing Shelton v. Tucker, supra (emphasis added).

When legitimate governmental concerns are expressed in legislation that clearly conflicts with the exercise of a fundamental right, the validity of the means chosen must turn on the precision with which the government can identify the unprotected conduct. “[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, supra, 364 U.S. at 488, 81 S.Ct. at 252, 5 L.Ed.2d at 237 (footnote omitted); see United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

The two psychologists provided the only possible link between the policy of requiring the children of public school teachers to attend the public schools and the Board’s legitimate interest in providing an equal educational opportunity to all its students. Their testimony indicates that an objectionable effect in the classroom could result from student perception of the teacher as being uncommitted to desegregated public schools. The student who so perceives the teacher, whatever that teacher’s actual belief, will “perceive rejection, and experience a sense of inferiority, . . . and be inclined to perform at a lower educational level.”

Even accepting the existence of a significant depressant effect on a child’s ability to learn from a teacher who does not appear to support desegregated education, there would remain a serious question regarding the accuracy of the further necessary presumption that all teachers who send their children to segregated private schools convey the debilitating image. Certainly it must be conceded that many valid reasons abound for choosing private over public education — reasons which would retain their validity in the context of court ordered desegregation, and can be understood and appreciated by adult and child alike to have legitimate, non-racial bases. Obviously too, a student who is aware of legitimate reasons for the decision will not perceive the teacher as antipathetic and should not suffer any adverse effect.

It is more important, however, to recognize that a teacher’s effectiveness in the classroom is a complex composite of variable elements, no one of which universally will determine academic success. One of the experts here indicated that “reinforcement,” the relevant psychological principle, was affected by many factors, such as “paying attention to students, showing respect, trust, acceptance.” Doubtless, he left many more unlisted. A teacher who is perceived by her students to reject the viability of desegregated education may have other strengths and abilities that more than ° compensate for the one negative factor and enable her to provide “positive reinforcement” to her students and to remain an effective classroom performer. The presence of such teachers in the public schools in no way interferes with the Board’s duty to offer a non-discriminatory education, and no legitimate governmental interest would be served either by the teachers’ compliance with the policy or their exclusion for noncompliance.

I find equally doubtful the apparent assumption that compliance with the policy will dissipate the harmful perceptions that are said to justify its application. To the extent the impermissible influences at which the policy is aimed result from the teacher’s actual attitudes and beliefs, as in the case of “teacher expectations,” the choice of schooling for the teacher’s own children is no more than one evidence of an underlying bias. Unlike the impairment of the teacher’s ability to reinforce learning that results from the students’ perception (or misperception) of the teacher, the harm that results from the teacher’s perception of the students has not been shown to be remediable simply by removing this single appearance of disloyalty. Can a teacher’s achievement expectations of the students in her classroom be expected to change after the enforced enrollment of her own children in the same school system, particularly if the discrepant expectations have a racial basis?

The fit between the Board’s policy and the governmental interest it is alleged to serve is thus highly imperfect: it excludes from the public schools teachers who do not possess the characteristics that underlie its premises but who are unwilling to abide by its terms, while it permits to remain teachers who possess racial attitudes of much greater disadvantage to their students. Whatever actual benefits may accrue to the school system by operation of the policy will be as much by coincidence as by design. The reason for this is plain. The Board has incorrectly singled out a teacher’s decision to send his or her own children to private school as an infallible indicator of an undesirable classroom effect that it has a legitimate interest in removing. Because of this, the policy acts arbitrarily to deny a fundamental right to public school teachers and therefore cannot be upheld.

Of course a school board should be free to dismiss any teacher whose personal beliefs and actions substantially impede effective classroom performance. This public employer is completely on a par with the private employer in the ability to require that job performance take precedence over an employee’s private life. The Constitution requires, however, that if a determination of unfitness is to be made from a presumption based on protected activity, that activity must be conclusively shown to evidence a harmful trait. The expert testimony falls far short of establishing as “necessarily or universally true in fact” the presumption of an impermissible classroom effect. Then too, the Board has a reasonable alternative means of making the determination as part of its evaluation of each teacher’s performance. In these circumstances, the Board’s over-broad employment policy should be stricken as violative of the Due Process Clause of the Fourteenth Amendment. See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1973).

II.

After upholding the constitutionality of the policy, the court below went on to reject plaintiffs’ procedural due process claims, holding that whatever entitlement plaintiffs might have to a hearing before the Board prior to termination had been satisfied by its judicial proceedings. See Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970). Thus, review of the court’s decision cannot end on a determination that the policy cannot stand as a per se rule. Scrutiny must be made of the court’s implicit finding that the premises underlying the policy correctly identified valid, constitutional reasons for the dismissal of these plaintiffs as individuals.

To sustain a determination of unfitness on the basis of protected activity, the governmental interest to be served must outweigh the infringement of personal liberty, viewed in the special environment of the schoolroom. “The problem in any case is to arrive at a balance between the interests of a teacher, as a citizen, in [the exercise of a fundamental right,] and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811, 817 (1968); see Ferguson v. Thomas, supra; Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969). Despite acknowledging the applicability of the Pickering balancing of interests test to the refusal to rehire these teachers, the district court apparently accepted the Board’s argument that the interest in ending discrimination, in and of itself, ordained the result. No values were assigned to the teachers’ rights, nor was any method of balancing the competing interests defined. Rather, the court concluded that since the Board’s policy was “based upon logic that is readily discernible” and “adopted in keeping with the command of the Fourteenth Amendment and the desegregation order of this court,” it should be enforced. By thus assaying only one of the competing interests at stake, the court cast the balance irretrievably in the Board’s favor. This disposition does not represent the careful weighing of constitutional values that Pickering commands.

Defendants claim that the challenged policy furthers five legitimate governmental interests: (1) the compelling interest in meaningful public education; (2) the assurance of complete and total support, loyalty and dedication of the public school teachers in Calhoun County to the public school system and its duties; (3) the elimination of an improper influence on the educational process of the public schools of Calhoun County; (4) the maintenance of appropriate classroom effectiveness and performance of its teachers; and (5) the affirmative duty of the Calhoun County public school officials to eliminate racial discrimination from the public schools. It is in this last listed interest that majority and the court below find the mandate to override the personal rights of public employees. No part of the earlier desegregation order literally commanded the Board to adopt the policy. Nevertheless, defendants claim that the action was both required and justified by the court order to bring about a unitary school system and the Supreme Court decisions interpreting Brown II to require comprehensive efforts to remove all vestiges of racial discrimination from the public schools.

In support of this contentioñ, defendants draw principally on Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In Green, the Court held that, under Brown II, “school boards . . . then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Id. at 437— 38, 88 S.Ct. at 1694, 20 L.Ed.2d at 723 (emphasis added). This duty includes the desegregation of faculty and staff of the public schools, “not because of teachers’ employment rights, but because students are entitled to a nonracial education, and the assignment of teachers to students on the basis of race denies students that right.” Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967); see Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965). Specific guidelines for the satisfaction of the Brown II mandate with respect to student body and faculty desegregation in individual schools have been developed on a case-by-case basis. See, e.g., United States v. Jefferson County Board of Education, 380 F.2d 385 (5th Cir. 1967), cert. denied sub nom. Board of Education of City of Bessemer v. United States, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104 (1967); Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970); see generally Swann v. Charlotte-Meeklenburg Board of Education, supra, 402 U.S. at 18, 91 S.Ct. at 1277, 28 L.Ed.2d at 567. Other decisions have emphasized that a school board “is not only under an obligation not to foster discrimination, but to affirmatively eliminate impediments to a unitary system of education.” Augustus v. School Board of Escambia County, 361 F.Supp. 383, 387 (N.D.Fla.1973), modified and remanded, 507 F.2d 152 (5th Cir. 1975).

In matters which directly involve the classroom, a school board’s interest in maintaining the quality of its educational offering weighs far heavier than the teacher’s right to insist upon the exercise of personal freedoms and liberty. Restraints upon individual expression in or about the school that conflicts with the board’s constitutional duties are justifiable. For example, in Smith v. St. Tammany Parish School Board, 316 F.Supp. 1174 (E.D.La.1970), aff’d, 448 F.2d 414 (5th Cir. 1971), the court banned the display of Confederate flags and banners in the schools “expressing the school board’s or its employees’ desire to maintain segregated schools” noting that “[n]ot only is the school board to operate a unitary system but the system must be racially non-discriminatory. The retention of Confederate flags in a unitary school system is no way to eliminate racial discrimination ‘root and branch’ from the system.” 316 F.Supp. at 1176; see also Augustus v. School Board of Escambia County, supra.

Only one case in this circuit has interpreted a school board’s affirmative duty to eliminate discrimination to require the board’s consideration of a teacher’s personal racial attitudes in making employment decisions. In United States v. Indianola Municipal Separate School District, 410 F.2d 626 (5th Cir. 1969), this court reversed the district court’s approval of a school desegregation plan that, inter alia, failed to make adequate provision for faculty integration. Noting that no black teachers taught at either “white” school and only one white teacher taught, for a half-day each week, at only one of the two “black” schools, the court held:

The school board must actively seek out qualified instructors who are willing to teach children of any color. The voluntary approach is demonstrably not adequate, and the school board must do everything within its power to recruit and reassign teachers so as to provide for a substantial degree of faculty integration. . . . We agree that the school board must withhold approval of teacher contracts if that is necessary to achieve more racially balanced faculties. “The board’s responsibility is not optional: It must withhold approval of contracts if necessary to achieve faculty desegregation.” United States v. Greenwood Municipal Separate School District, [406 F.2d 1086 (5th Cir. 1969)] 406 F.2d at 1094.

410 F.2d at 630 (emphasis in original). Indianola basically relates to the board’s duty to employ personnel whose race can accomplish the numerical desegregation of the teacher corps of a formerly dual school system. An obvious incident of this duty was the recruitment of black teachers willing to teach white children and white teachers willing to teach black children. The only articulated limitation upon personal attitudes is a willingness to instruct children of any race — a condition that is so intimately job-related as to make discussion of its impact upon classroom performance unnecessary.

While the decisions of this circuit as well as of the Supreme Court clearly establish the primacy of the duty to eliminate racial discrimination from the public schools, they cannot establish that in a particular case the exercise of fundamental rights actually impinges upon the educational process. It is the degree to which the respective interests are shown to unavoidably conflict that enables essentially intangible rights to be “balanced.” I reject the notion that the desegregation order or judicial precedents obviate application of the Pickering test in these circumstances.

As demonstrated in Part I of this dissent, the oply evidence that employment of these teachers would frustrate the Board’s efforts to provide a non-discriminatory education was altogether abstract. While no prior similar cases have dealt with precisely the kind of subtle psychological effect asserted here, they have uniformly required a showing of more than a speculative inference that constitutionally protected activity could interfere with a state interest. Tinker v. Des Moines Independent Community School District, supra, concerned the exercise of personal rights by students rather than teachers, but we have interpreted its tenets as equally applicable to the regulation by school boards of both. See, e.g., Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir. 1971); Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969). In Tinker, the school board had forbidden the wearing of black armbands by students while on school facilities. The Supreme Court, drawing from the Fifth Circuit decision in Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), held that in the absence of a reason to forecast substantial disruption or material interference with school activities, the regulation impermissibly infringed the students’ right to freedom of expression. In James v. Board of Education of Central District No. 1, etc., 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972), the Second Circuit confronted a situation identical to Tinker except that it was a teacher, not a student, who sought to wear a black armband in class to protest war. As in Tinker, the court found insufficient evidence of actual disruption to justify the infringement of freedom of speech. “Although we can imagine situations in which a teacher would be so controversial because of his tenets or beliefs that he would be a disruptive force in the school, no one would suggest that he could be dismissed merely because he was identified with a particular cause if he did not preach that cause in class.” 461 F.2d at 572 n. 13. James did, however, point out that there was no “suggestion whatsoever that his armband interfered with his teaching functions, or, for that matter, that his teaching ever had been deficient in any respect.” 461 F.2d at 574 — 75 (footnote omitted).

In Smith v. United States, 502 F.2d 512 (5th Cir. 1974), this court adopted the standard of material and substantial interference to test claims of arbitrary action by a public employer.

When a government employee asserts that his rights have been unconstitutionally infringed, it is necessary to strike a balance between the interests of the employee as a citizen and the interests of the government in promoting the efficiency of the services it performs through its employees. In striking that balance in the context of the First Amendment guaranty of freedom of speech, we feel that the standard of material and substantial interference is the standard to apply. In order for the government to constitutionally remove an employee from government service for exercising the right of free speech, it is incumbent upon it to clearly demonstrate that the employee’s conduct substantially and materially interferes with the discharge of duties and responsibilities inherent in such employment. Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971).

502 F.2d at 516 — 17. The plaintiff-appellant in Smith was a clinical psychologist at a Veterans’ Administration hospital who was discharged after repeated requests by his supervisor that he cease to wear a “peace pin” while on duty. In upholding his discharge, we found the evidence sufficient to establish “that the wearing of the peace pin while on duty resulted in a material and substantial interference with the performance of his duties as a staff psychologist charged with the duty of administering psychotherapeutic treatment to emotionally disturbed veteran patients.” The need for a demonstration of material and substantial interference with actual job performance would seem to be at least as great here. The alleged interference in today’s case results not from the teachers’ conduct while in the classroom or about the school, but from the uncontrollable and possibly groundless perceptions of others that might result from their knowledge of a personal family decision which in itself was wholly unrelated to the job.

Elimination of racial discrimination, and its effect on developing attitudes and values, from public education is judicially established as a constitutional mandate. However, the evidence in this record establishes no more than that one facet of these teachers’ private lives carries a potential to instill a negative value into the relationship between teachers and their students. The proof does not disclose that the impact of this negative force is so debilitating that these teachers’ ability to contribute to the advancement of quality education in a unitary system would be overborne in every case or indeed in any one of their cases, or that the students of these teachers will derive from the knowledge of this fact feelings of rejection so deep that no effort the teachers may- put into their work can overcome them. The failure of the evidence to demonstrate that their protected activity would substantially and materially interfere with the discharge of their teaching duties and responsibilities should have brought the balance down on the teachers’ side.

It is clear to me that the school’s policy is unconstitutionally overbroad. It was not shown to form a proper basis for the defendant’s decision not to offer reemployment to any one of these plaintiffs individually. The decree appealed from ought to have been reversed for a school board determination of each plaintiff’s case, free from the unconstitutional constraint of the school board policy. Today’s case is cast in the appealing garb of reinforcing public school desegregation by suppressing the right to educate one’s child in a segregated private school. The problem is that the decisional principle it establishes applies to all forms of personal associations from the Ku Klux Klan to Black Panthers, and from membership in the Citizens Counsel to membership in the NAACP. Another such victory, bought at the expense of surrendering constitutionally protected rights to the expertise of psychological opinion, and we are undone.

I respectfully dissent.

      . Miss. Code Ann. Section 37-9-17 (1972). Mississippi does not provide tenure for public school teachers. See Jennings v. Meridian Municipal Separate School Dist., 337 F.Supp. 567 (S.D.Miss.1971), aff’d, 453 F.2d 413 (5th Cir. 1971).

      . The letter, signed by an attorney in the Education Section on behalf of an Assistant Attorney General, read in pertinent part as follows:
      Although the Department of Justice is authorized by law to render legal opinions only to the President and the heads of the executive departments, we also have the responsibility to enforce the court orders in this case. Those orders would certainly not preclude the school board from taking the action described in your letter. Indeed, as your letter correctly notes, the court, in its ruling from the bench on August 7, 1968, made several references to the board’s obligations to take “positive and affirmative steps.” As was pointed out by Chief Justice Berger [sic] in McDaniel v. Barresi, 402 U.S. 39, 41 [91 S.Ct. 1287, 28 L.Ed.2d 582] (1972), “school boards that operated dual school systems are charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” See also, Green v. County School Board, 391 U.S. 430, 437 — 438 [88 S.Ct. 1689, 20 L.Ed.2d 716] (1968).
      The comments made above do not. purport to answer any “due process” or “First Amendment” issues which may be raised in this matter. We appreciate your interest in •writing this Department.

      . In this connection we note that subsequent to the adoption of this policy and before these teachers were not reemployed the State of Mississippi enacted a statute that prohibits school board regulations denying employment or reemployment on the ground of nonenrollment of an eligible child in that public school system. Chapter 459, Laws of 1974. Since none have suggested that the statute should be given retroactive effect the validity of the statute is not before us.

      . Quoting Clark v. Holmes, 474 F.2d 928, 931 (7th Cir., 1972).

      . 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952).

      . As the explanation following the statement of facts indicates, the text of these dissenting views was originally prepared as a proposed majority opinion to reverse the judgment of the district court.

      . Compare Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (right of privacy founded in the Fourteenth Amendment’s concept of personal liberty and restrictions on state action) with Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (“By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments”) and Green v. Connally, 330 F.Supp. 1150 (D.D.C.1971) (freedom of association supports the right to educate child in the school of the parent’s choice).

      . Brown v. Board of Education. 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955).

      . Cf. Doherty v. Wilson, 356 F.Supp. 35 (M.D. Ga.1973) (“A school board may fire, refuse to rehire or refuse to hire a teacher who has exercised constitutionally protected rights in such a manner as to seriously impair or destroy her effectiveness as a teacher.”).


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Deloy C. ROSS, Defendant-Appellant.
    No. 74-2969.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    Rehearing and Rehearing En Banc Denied May 16, 1975.

      Joe J. Tritico, Lake Charles, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before AINSWORTH, GODBOLD and SIMPSON, Circuit Judges.
   AINSWORTH, Circuit Judge:

Defendant Deloy C. Ross appeals from a judgment of conviction entered after a jury trial on five counts of evasion of federal income tax. He raises three issues on this appeal: that the trial court improperly denied in part his motion for discovery under Fed.R.Crim.P. 16; that the prosecution failed to fulfill its obligation to disclose evidence favorable to the defense under Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and that the Government denied him due process and violated his Fourth Amendment rights in acquiring from a third party certain papers and records allegedly belonging to him. We affirm the conviction.

I. Factual Background of the Investigation and Trial

In May 1969, two Internal Revenue Service agents interviewed Deloy Ross and told him that they were undertaking an investigation of his tax returns that might lead to criminal charges. After conferring with his accountant and attorney, Ross agreed to permit the agents to inspect . and hand copy business records to be provided by him at his accountant’s office. These records included accounting books and corporate records of a motel owned by Ross, of Ross Investments, Inc., and of W. C. Ross & Son, a general store partnership between Ross and his father (W. C. Ross) which was dissolved in January 1968. These records were for tax years 1965 through 1969. It was agreed that none of the records thus provided was to be Xeroxed or removed by the IRS agents.

As part of their investigation the IRS agents interviewed defendant’s stepbrother, William Taylor. Defendant had sold the store operated under the W. C. Ross & Son partnership to Taylor in 1968, and several boxes containing financial records of the partnership remained there. In September 1970, Taylor took these records to attorneys looking into his claims against his mother’s estate. In March 1971, Taylor retrieved some of these records and turned them over to the IRS agents, in response to their request. The agents received the remaining records directly from the attorneys, with Taylor’s permission. This investigation culminated in indictments against Deloy Ross for evasion of income tax owed by himself and his wife for 1966, 1967, and 1968, and for evasion of income tax owed by Ross Investments, Inc. for 1968 and 1969.

The Government’s case at trial was proved by the “net worth” method, which is used to establish a taxpayer’s true income when there is no direct proof of the unreported income. The net worth method involves calculating the taxpayer’s assets and liabilities at the beginning of the relevant tax period to establish an initial net worth. The same calculation is performed as to assets and liabilities at the end of the tax period. If the taxpayer’s increase in net worth plus his living expenses for that tax period exceed his reported income and cannot be explained by receipt of nontaxable income, the existence of unreported income may be inferred.

Before trial defendant filed a written motion seeking discovery from the Government of

A. All books, records, papers, documents, photographs, tangible objects and material obtained from or belonging to the accused;
B. Copies of all books, records, papers, documents, photographs, tangible objects and material obtained from or belonging to the accused;
C. All books, records, papers, documents, tangible objects and material from whomsoever obtained which are favorable to the accused on the issue of his guilt or punishment and which will aid him in the preparation of his defense;
D. All books, records, papers, documents and physical material which the Government intends to offer as evidence in this case.

This motion was granted, and the Government provided defendant with a set of computations and data sheets it developed in attempting to establish the amount of unreported income attributable to defendant and his enterprises during the years in question.

Ross sought to rebut the Government’s case by asserting that he had a substantial cash accumulation from years prior to the tax years in question, and that he received large cash gifts (several hundred thousand dollars) from his father, W. C. Ross, who died in 1969. The Government sought to refute this assertion by offering the testimony of an IRS agent who had analyzed W. C. Ross’ personal income tax returns and the monthly accounting statements of the W. C. Ross & Son partnership from 1952 through 1968. The tax returns for 1952 through 1968 were introduced into evidence, as were the accounting statements of W. C. Ross & Son for 1952 through 1964, except for 1956. Although a few monthly statements for this period were not introduced, the vast majority were. Defendant made no objection to the introduction of this evidence.

The jury returned a verdict of guilty on all counts. Defendant filed several motions for a new trial, arguing that the Government had seized the records of the W. C. Ross & Son partnership from Taylor in violation of defendant’s Fourth Amendment rights and in violation of the Government’s agreement with him; also, that the Government had failed to produce materials described in defendant’s pretrial motion for discovery, which had been granted by the court, as well as other evidence required to be disclosed under Brady v. State of Maryland, supra. These post-trial motions were denied, and defendant brought this appeal.

II. The Adequacy of Pretrial Discovery

A. Failure to Raise This Alleged Error at Trial

Defendant argues on this appeal that the trial court partially denied his discovery motion. The record shows, however, that the motion was granted by the trial judge without qualification. Whether an error was committed is, of course, affected by the extent of defendant’s efforts, under Fed.R.Crim.P. 16(g), to bring to the court’s attention any alleged noncompiiance by the Government with his discovery requests.

The records of W. C. Ross & Son were introduced during the prosecution’s case. Defendant was aware that the boxes of records stored at his stepbrother’s business contained the financial statements introduced into evidence, yet no motion to suppress this evidence was offered until defendant’s motion for a new trial, made after the jury’s verdict was received and 48 witnesses and 1,800 pages of transcript later. Moreover, during the prosecution’s case an IRS agent testified (and defense counsel stipulated) that the stepbrother Taylor was the source of the records.

This Court and others have criticized failure to raise alleged discovery errors promptly. See United States v. Fink, 5 Cir., 1974, 502 F.2d 1, 7; United States v. James, 5 Cir., 1974, 495 F.2d 434, 436-437; United States v. Baxter, supra. Defendant’s ample opportunity to ask the trial court to order the Government to comply with his request for documents must be taken into account in determining whether error was committed in denying the motions for a new trial.

B. The Provisions of Fed.R.Crim.P. 16(b) and the Standard of Review

Fed.R.Crim.P. 16(b) provides, in relevant part:

(b) Other Books, Papers, Documents,' Tangible Objects or Places. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable.

The operative terms of the rule are “materiality” and “reasonable.” The phrase “the court may order” in the text of Rule 16(b) clearly indicates that the granting of discovery motions is a matter of the trial court’s discretion. In judging the correctness of the trial court’s conclusion that the evidence not tendered by the Government was not material and that defendant’s request for such materials (as clarified and renewed in his motion for a new trial) was not reasonable, we will not interfere with the trial court’s ruling in the absence of a clear abuse of discretion. United States v. Stone, 5 Cir., 1973, 472 F.2d 909, 916. We find no abuse of discretion in this regard.

C. Materiality of the Disputed Documents

As a matter of general construction “[t]he measure of discovery permitted by the Rules of Criminal Procedure is not intended to be as broad as in a civil case.” Clay v. United States, 5 Cir., 1968, 397 F.2d 901, 915, vac. on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). Materiality means more than that the evidence in question bears some abstract logical relationship to the issues in the ease. See United States v. Schembari, 4 Cir., 1973, 484 F.2d 931, 935 (fact that photographs in Government’s possession were of demonstration during which defendant was arrested held insufficient to show materiality). There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor. The extensiveness of the material which the Government did produce, United States v. Hildebrand, 5 Cir., 1974, 506 F.2d 406, 409, and the availability of the disputed material from other sources, including the defendant’s own knowledge, must also be considered. See United States v. Felts, 5 Cir., 1974, 497 F.2d 80, 82.

The Government gave defendant a complete summary of the computations and data on which it based its calculation of defendant’s net worth and income for the tax years in question. The only point on which the disputed records were relevant was whether Ross’ father had sufficient income to be able to make the cash gifts that were the basis of one of Ross’ defenses. Defendant’s accountant testified that copies of the profit and loss statements of W. C. Ross & Son introduced by the Government, as well as copies of those not introduced from earlier years, were customarily kept on file in the accountant’s office. Therefore, it is different to understand how obtaining the Government’s copies of these reports could have materially aided Ross’ defense, especially since defendant did not dispute the total amount of income attributed by the Government to W. C. Ross as evidenced by the tax returns, certificates of assessments and payments, and the IRS agent’s testimony. Documents showing W. C. Ross’ income from one source, the partnership, for the months not covered in the Government’s proof, would be relevant only if defendant disputed the amount of income attributable to W. C. Ross from all sources combined. It follows that the receipts and other primary sources from which the tax returns and accounting statements were prepared are also not. material, and would only have duplicated the testimony of defendant’s accountant concerning his preparation of the returns and statements.

The most persuasive evidence that the trial court did not err in his ruling on this issue is found in defendant’s lack of interest in the documents until some of them were introduced at trial. Deloy Ross’ testimony shows he was well aware of the contents of these boxes of records. He was also aware that the records were no longer in the store as of the middle of 1971, two years after the IRS began its investigation but nearly two full years before any indictments were handed down.

D. Reasonableness of Defendant’s Discovery Request

Irrespective of the materiality of the documents requested by defendant, we believe the request was not reasonable, as required by Rule 16(b), under all the circumstances. To be reasonable a request for documents must not be unduly burdensome to the Government, and, equally important, must be framed in sufficiently specific terms to show the Government what it must produce. See United States v. Hauff, 7 Cir., 1973, 473 F.2d 1350, 1355. General descriptions of the materials sought and conclusory arguments as to their materiality have been rejected repeatedly as insufficient under Rule 16(b). United States v. White, 5 Cir., 1971, 450 F.2d 264, 267.

If a defendant is requesting documents he has never seen, he obviously cannot designate specifically the items sought, although a concrete showing of materiality is still required. See United States v. Hughes, 5 Cir., 1969, 413 F.2d 1244, 1254. In this case, however, defendant was familiar with the disputed documents and knew they had been removed from their place of storage; yet nowhere in defendant’s discovery motion is there any specific mention of these documents. Not until his motion for a new trial did defendant specifically request the documents in question and specifically state why he believed they were material. Under the circumstances, defendant’s discovery request was not sufficiently specific to apprise the Government of what was sought or to permit the trial court to determine in a timely fashion whether material evidence had not been produced.

E. Harmless Error

If, contrary to our interpretation of this case, error was committed by the trial court, we are convinced it was harmless. See United States v. Hildebrand, 5 Cir., 1975, 506 F.2d 406, 408 — 410. The evidence of this defendant’s guilt is very substantial. The Government showed that Ross had regularly withheld substantial amounts of cash from his business deposits, and had used some of this cash to purchase Treasury bonds (the income from which was not reported) and bank money orders, putting the remainder in a special bank account. Ross’ defenses of prioi^cash accumulation and gifts from his father were refuted by proof that Ross, by his own admission, had invested all of his accumulated cash in his motel business, and by proof that his father had insufficient income to make the large cash gifts alleged.

This Court has held that “an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant.” United States v. James, 5 Cir., 1974, 495 F.2d 434, 436. See United States v. Miller, 5 Cir., 1974, 500 F.2d 751, 755; United States v. Saitta, 5 Cir., 1971, 443 F.2d 830, 831; Mullins v. United States, 8 Cir., 1973, 487 F.2d 581, 589; United States v. Jordan, 2 Cir., 1968, 399 F.2d 610, 615. In this case the accounting records introduced by the Government, although not produced before trial, were discussed in the IRS agent’s report, which was furnished to defendant several days before the records were offered in evidence. Thus, even if the records should have been produced before trial, we believe defendant had sufficient opportunity to consider this evidence, or at least to request more time. See United States v. James, supra, 495 F.2d at 436— 437; Pierce v. United States, 5 Cir., 1969, 414 F.2d 163, 169; United States v. Amabile, 7 Cir., 1968, 395 F.2d 47, 52; United States v. Knohl, 2 Cir., 1967, 379 F.2d 427, 441-442. As for the few monthly reports that were not introduced into evidence, defendant has failed to show any prejudice from not receiving those documents.

On the basis of this inquiry into the materiality of the evidence not produced, the reasonableness of defendant’s discovery requests, and the possibility of prejudice, we perceive no abuse of discretion in the trial court’s refusal to grant a new trial on grounds of noncompliance with its discovery order. See United States v. Smaldone, 10 Cir., 1973, 484 F.2d 311, 320-321; Meyer v. United States, 8 Cir., 1968, 396 F.2d 279, 283.

III. Failure to Disclose Brady Material Defendant also contended in his motion for a new trial that the Government had failed to disclose evidence favorable and material to his defense, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d- 215 (1963). The evidence not disclosed in this case is far different in importance from the evidence prosecutors have been required to divulge under Brady. Cf. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) (misidentification of defendant by prosecution witness on an earlier occasion, and diagram of murder scene showing poor vantage point of eyewitness); United States v. Frick, 5 Cir., 1973, 490 F.2d 666, 671 (promise not to oppose probation of Government witness).

Moreover, the trial court examined the documents in camera and specifically found that none was exculpatory — a method of dealing with Brady contentions that this Court and others have approved. See United States v. Sanchez, 5 Cir., 1975, 508 F.2d 388; Flanagan v. Henderson, 5 Cir., 1974, 496 F.2d 1274, 1277; Taglianetti v. United States, 1 Cir., 1968, 398 F.2d 558, 572, aff’d 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969). We find no basis for overturning the trial court’s finding. As was true in United States v. Register, 5 Cir., 1974, 496 F.2d 1072, 1081,

[a]n in camera examination by the trial judge confirmed the government’s statement that [the evidence in question] contained no exculpatory Brady material. We will not go beyond the trial court’s finding to encourage shipping prosecutor’s files to the appellate court whenever the defense cries Brady.

IV. Government Misconduct in Acquiring the Disputed Documents

Defendant argues that in acquiring the business records from his stepbrother Taylor, the Government broke its promise not to remove or Xerox his records. It is true that breach of a promise made to a defendant by Government officials violates due process in some circumstances. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Scanland, 5 Cir., 1974, 495 F.2d 1104, 1106. In this ease, however, there was no such breach. The IRS agents asked defendant for records from 1965 through 1969. He provided these at his accountant’s office on the condition that they not remove or copy the records. The agreement clearly related only to those specific records and did not obligate the agents, as defendant argues, to ignore documents discovered through other sources.

The manner in which the records were acquired from Taylor was also entirely proper. The IRS agents secured some of these records from an attorney who handled Taylor’s claims against his mother’s estate and the remaining records from Taylor himself. Obtaining these documents was proper, because they were undertaken with the consent of Taylor and his attorney. See United States v. Thompson, 5 Cir., 1970, 421 F.2d 373; Holzhey v. United States, 5 Cir., 1955, 223 F.2d 823; United States v. DiPrima, 1 Cir., 1973, 472 F.2d 550; Shorey v. Warden, Maryland State Penitentiary, 4 Cir., 1968, 401 F.2d 474. Cf. Comment, Third-Party Consent Searches: An Alternative Analysis, 41 U.Chi.L.Rev. 121 (1973). The trial court correctly found that there was “not the slightest evidence of any overbearing threat, trick or deception on the government’s part.”

Having reviewed all of defendant’s contentions carefully, we find no reversible error.

Affirmed.

      . The Government also introduced certificates of assessments and payments of W. C. Ross for the years 1941 through 1968. These, in conjunction with the tax returns, showed that W. C. Ross earned $147,000 during that period.

      . Fed.R.Crim.P. 16(g) states, in relevant part: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.

      . Defense counsel did attempt to lodge a general objection to all documents introduced: “to be certain, Your Honor, if there is anything that the Court ordered them to give us, and if they didn’t do it, I want the record to reflect that.” Tr. at 381. The prosecution objected, and the court properly treated defendant’s objection as applying to the document then being introduced, which is not at issue on this appeal.

      . Cf. United States v. Hauff, 7 Cir., 1973, 473 F.2d 1350, 1353; United States v. Baxter, 9 Cir., 1973, 492 F.2d 150, 173, where defendants, upon learning that the Government had not complied with their discovery requests, moved for a mistrial.

      . See United States v. Armes, 6 Cir., 1972, 470 F.2d 1353, 1355; United States v. Cook, 7 Cir., 1970, 432 F.2d 1093, 1101; United States v. Indiviglio, 2 Cir., 1965, 352 F.2d 276, 280. See generally Colella v. United States, 1 Cir., 1966, 360 F.2d 792, 800. Cf. United States v. Wolfson, 2 Cir., 1969, 413 F.2d 804, 808.

      . See United States v. Saitta, 5 Cir., 1971, 443 F.2d 830, 831; United States v. Hancock, 5 Cir., 1971, 441 F.2d 1285, 1286; United States v. Baxter, 9 Cir., 1973, 492 F.2d 150, 175; Mullins v. United States, 8 Cir., 1973, 487 F.2d 581, 589; United States v. Smaldone, 10 Cir., 1973, 484 F.2d 311, 320-321; United States v. Newman, 3 Cir., 1973, 476 F.2d 733, 739; United States v. Armes, 6 Cir., 1972, 470 F.2d 1353, 1355; United States v. Lewis, 7 Cir., 1969, 406 F.2d 486, 492; United States v. Jordan, 2 Cir., 1968, 399 F.2d 610, 615; Walsh v. United States, 1 Cir., 1967, 371 F.2d 436, 437.

      . See United States v. Toombs, 5 Cir., 1974, 497 F.2d 88, 93; United States v. Hancock, 5 Cir., 1971, 441 F.2d 1285, 1286-1287; United States v. Bland, 5 Cir., 1970, 432 F.2d 96, 97; United States v. Brawer, 2 Cir., 1974, 496 F.2d 703, 705; United States v. Barnes, 8 Cir., 1973, 486 F.2d 776, 779; Xydas v. United States, 1971, 144 U.S.App.D.C. 184, 445 F.2d 660, 668.

      . See United States v. Hughes, 5 Cir., 1969, 413 F.2d 1244, 1254; Downing v. United States, 5 Cir., 1965, 348 F.2d 594, 599; United States v. Moore, 6 Cir., 1971, 439 F.2d 1107, 1108; United States v. Conder, 6 Cir., 1970, 423 F.2d 904, 910; United States v. Evanchik, 2 Cir., 1969, 413 F.2d 950, 953; United States v. Fioravanti, 3 Cir., 1969, 412 F.2d 407, 411; United States v. Jordan, 2 Cir., 1968, 399 F.2d 610, 615.

      . We do not believe that defendant’s request for all documents “belonging” to him was sufficient to notify the Government that it was being asked for his father’s personal records and for the records of a business no longer owned by the defendant. As the District Court noted, whether Ross had legal title to the papers was hárdly clear. Moreover, proprietary interest is no longer a relevant criterion under Rule 16(b). See United States v. Crisona, S.D.N.Y., 1967, 271 F.Supp. 150, aff’d 2 Cir., 1969, 416 F.2d 107.

      . See United States v. Rojas, 5 Cir., 1974, 502 F.2d 1042, 1045; United States v. White, 5 Cir., 1971, 450 F.2d 264, 268; United States v. Hinkle, 1973, 159 U.S.App.D.C. 334, 487 F.2d 1205, 1206-1207; United States v. Hauff, 7 Cir., 1973, 473 F.2d 1350, 1355; United States v. Bryant, 1971, 145 U.S.App.D.C. 259, 448 F.2d 1182, 1184; United States v. DeLeo, 1 Cir., 1970, 422 F.2d 487, 499; United States v. Crisona, 2 Cir., 1969, 416 F.2d 107, 115.

      . United States v. Tashman, 5 Cir., 1973, 478 F.2d 129 (unspecified promise to coconspirator contingent upon the value of his testimony); Evans v. Janing, 8 Cir., 1973, 489 F.2d 470 (police report stating that an eyewitness had failed to identify a photograph of the defendant); United States v. Poole, 7 Cir., 1967, 379 F.2d 645 (physician’s report in rape case concluding there was no evidence of penetration); Barbee v. Warden, Maryland Penitentiary, 4 Cir., 1964, 331 F.2d 842 (ballistics and fingerprint reports showing that a revolver not belonging to the defendant was used in the crime); United States v. Wilkins, 2 Cir., 1964, 326 F.2d 135 (existence of two disinterested eyewitnesses who would have testified that defendant was not involved in robbery).

      . Because we have concluded that defendant cannot prevail on the merits of this issue, we need not determine whether he has established his standing to contest the searches at issue. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Octavio SAENZ, Defendant-Appellant.
    No. 74-3451
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    Rehearing and Rehearing En Banc Denied June 9, 1975.

      James R. Gillespie, San Antonio, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., John E. Clark, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens is Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Octavio Saenz appeals his conviction for making false material declarations before the grand jury in violation of 18 U.S.C. § 1623. He alleges there was insufficient evidence, that the declarations were not material to the issue before the grand jury, and that the court did not comply with Rule 32(a)(1) F. R.Cr.P., in sentencing him. We have reviewed the record and find these allegations' to be without merit. The conviction is affirmed.

Appellant is the mayor of Benavides, Texas, a position he has held since 1955. Appellant was convicted of lying to the grand jury about the reason he withdrew $5,000 from a bank account styled “City of Benavides Special Sinking Fund,” and his involvement in and knowledge of the opening of the account. In 1972, a federal grand jury in San Antonio began an investigation of George B. Parr for tax evasion. Parr was eventually convicted, and his conviction has been affirmed by this Court. Parr was counsel for the Duval County Water District, and there was much evidence that Parr had used water district funds for his own use. See United States v. Parr, 509 F.2d 1381 (5th Cir. 1975). Parr purchased irrigation equipment from a company in Houston and paid for part of it from the City of Benavides Special Sinking Fund. The fund had been established when a bank in Dallas returned some $39,000 to the city after bonds were paid for. Though the draft for some $33,000 + worth of equipment was drawn on the water district, the account was paid with Benavides funds. The bank was unable to explain the reason for this.

Five days after the $33,000+ draft, appellant withdrew $5,000 from the same account for himself. The grand jury questioned appellant about the two transactions. He denied any knowledge of the $33,000+ withdrawal. He testified the $5,000 was compensation for his services and had been agreed to by the city council. Appellant denied knowing when the sinking fund was established, how much money was deposited, or giving the Dallas bank instructions to transfer the money to the local bank.

At trial it was established that the city council had never authorized the $5,000 to appellant. A Dallas banker, Banyon, testified about appellant’s instructions to him regarding the transfer of the money. There was also evidence of appellant’s signature on the signature cards.

Appellant took the stand and denied remembering any transactions with the Dallas bank. He admitted the genuineness of his signature.

Viewed in the light most favorable to the government, and drawing all reasonable inferences therefrom, there was sufficient evidence to convict appellant of false testimony before the grand jury. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941). Appellant’s testimony was contradicted on both counts and in regard to both instances in the indictment. The question of credibility was for the jury. They simply did not believe appellant when he did not remember any transactions, seeing any letters, etc., regarding the opening of the sinking fund, while yet identifying his signature on the signature card required to open the account. The city council contradicted his story about the $5,000.

Appellant next alleges his testimony was not material to the grand jury’s investigation of Parr. Appellant did not raise this matter at trial, though the trial judge made an express finding of materiality. Materiality is a legal question to be decided by the court alone. The test is whether the false testimony was capable of influencing the tribunal on the issue, or whether it would have the natural effect or tendency to influence, impede, or dissuade the grand jury from pursuing its investigation. See United States v. Gremillion, 5 Cir., 1972, 464 F.2d 901, 905, and the cases cited therein.

One of the grand jury members testified to its inquiry regarding Parr and the expenditure of City of Benavides funds for him or the water district. They were interested in people who were parties to the transaction, parties such as Saenz must have been, given his establishment and control of the sinking fund. When Saenz’ testimony is looked at in respect to the large cash withdrawals from the city fund, it would tend to influence, impede or dissuade the grand jury on the issue of the involvement of Parr in these matters. The testimony was material.

Finally, appellant alleges the court did not comply with Rule 32(a)(1), F.R.Cr.P., because when it sentenced him, it read from a typed judgment. A review of the record reveals that both appellant and his counsel were allowed to speak on appellant’s behalf before he was sentenced. The record does not reveal whether the court read its judgment; however, the rule was complied with, thus appellant has no ground for complaint.

A review of the record reveals no other errors of law.

Affirmed.