author: PER CURIAM.

text:
    Robert Earl PETTIGREW, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-2204.
    United States Court of Appeals, Sixth Circuit.
    Submitted April 3, 1973.
    Decided June 20, 1973.

      Robert Earl Pettigrew, in pro per.
    Frederick M. Coleman, U. S. Atty., Joseph Cipollone, Asst. U. S. Atty., Cleveland, Ohio, for respondent-appellee.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
   PER CURIAM.

This is an appeal from an order of the District Court denying Appellant’s motion to vacate sentence pursuant to 28 U.S.C. § 2255. Appellant entered a plea of guilty to one count of armed robbery and in January, 1969 was committed to the custody of the Attorney General for eighteen years. In his petition, Appellant alleged that he was coerced into pleading guilty by an F.B.I. agent who told him that unless he pleaded guilty he would be brought to trial for five separate bank robberies and that he would be put away for life. The petition further alleged that the District Court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure in accepting Appellant’s guilty plea. Several other allegations were also made in the petition. The District Court denied the motion, finding that Appellant, at the time he entered his plea, had been advised of his constitutional rights, that he understood the charge against him, had been made no promises and had pleaded guilty because he believed he was guilty of the charge. The remaining allegations were found to be conelusory with no stated factual basis.

It is the contention of Appellant that the District Court failed to advise him of the consequences of his plea of guilty in accordance with Rule 11 of the Rules of Criminal Procedure which provides:

“A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

The .District Court, in accepting Appellant’s plea of guilty, did not inquire whether Appellant understood the consequences of his plea. Rule 11 requires the District Court to direct such an inquiry to the defendant. Smith v. United States, 400 F.2d 860 (6th Cir. 1968); Harris v. United States, 426 F.2d 99 (6th Cir. 1970).

The plea in this case was accepted on November 28, 1968, prior to the decision of the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), which held that failure to comply strictly with Rule 11 was per se prejudicial. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), the Court held that the decision in McCarthy was to be applied prospectively only, from April 2, 1969. We have previously considered the effect of a District Court’s failure to inform a defendant of the consequences of a guilty plea in accepting a plea before April 2, 1969. See Harris v. United States, 426 F.2d 99 (6th Cir. 1970). Had the plea been accepted after the McCarthy decision, a vacation of Appellant’s plea would be required and he would be permitted to enter a new plea. Since the plea was entered pre-MeCarthy, we remand for an evidentiary hearing to determine whether, at the time he entered his plea, Appellant was aware of the maximum sentence that could be imposed as a result of pleading guilty. The burden as to voluntariness is on the Government. Harris v. United States, 426 F.2d 99, 101 (6th Cir. 1970).

With regard to Appellant’s remaining contentions, we affirm the order of the District Court. The allegations relating to the pre-sentence report containing wrong information and the incompetence of Appellant’s counsel fail to state any supporting factual basis. A motion to vacate sentence under § 2255 can be denied for the reason that it states “only 6ald legal conclusions with no supporting factual allegations.” Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 1079, 10 L.Ed.2d 148 (1963). A denial for this reason is not on the merits, but merely a ruling that the petition was deficient. Sanders v. United States, supra, 373 U.S. at 19, 83 S.Ct. 148.

The order of the District Court is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

      . The following colloquy occurred at the time the plea was entered :
      “The Court: Let the record show the defendant is signing the waiver of indictment in open court, and he has been advised as to his rights in regard to it by counsel.
      There is no question, I take it, of service of the information?
      Mr. Fleming: No question, your Honor.
      The Court: How does he intend to plead to this?
      Mr. Fleming: At this time we will enter a plea of guilty to the information, your Honor.
      The Court: All right. Have you explained this information carefully to him?
      Mr. Fleming: Yes.
      The Court: You represent to the Court he fully understands it?
      Mr. Fleming: Yes.
      The Court: All right. You have explained to him his constitutional rights to a trial by jury, and so forth?
      Mr. Fleming: That is correct, your Honor.
      The Court: Mr. Pettigrew, you have heard counsel and my remarks. Do you fully understand the charge as set forth in this information?
      The Defendant: Yes, sir.
      Mr. Fleming: Your Honor, at this time I would like to request that this matter be referred to the Probation Department.
      The Court: Wait. Have any promises of any kind been made to you?
      The Defendant: No.
      The Court: Do you understand that if any promises have been made the Court knows nothing about them, and is in no way obligated to carry them out?
      The Defendant: Yes.
      The Court: Now, in entering a plea of guilty to this information will it be because you believe you arc guilty of this charge?
      The Defendant: Yes.
      The Court: That is, on or about the 31st day of May, 1968, in this district, you, with three other men, took, intimidated, and took from the Assistant Manager and tellers at the Central National Bank on Harvard Street— Harvard and Bast 64th Street, Cleveland, the sum of $11,617, belonging to that bank, the deposits of which in the bank were insured by the Federal Deposit Insurance Company, and in committing that offense you assaulted and placed in jeopardy the lives of employees with a dangerous weapon, a gun; is that correct?
      The Defendant: Yes, sir.
      The Court: And how do you plead then to the charge contained in this information, and that I have just summarized for you?
      The Defendant: Guilty, your Honor.
      The Court: A plea of guilty is
      entered, and the matter will be referred to the Probation Department for presentence report.
      Mr. Oakar: Your Honor, I recommend a $10,000 surety bond in this case.
      The Court: So ordered.
      Mr. Fleming: Thank you, your Honor.”

      . Appellant’s petition alleged that erroneous information was contained in the presentence report and that he was entitled to rebut that information. The petition did not claim an absolute right to the report. Rule 32(c)(2) of the Federal Rules of Criminal Procedure provides that
      . . [t]he court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government.”
      While this Circuit has not ruled on the question, most of the Circuits have not treated the issue of disclosure of the presentence report as one of constitutional magnitude, and have held that under Rule 32(c) (2) disclosure is discretionary with the trial judge. See United States v. Humphreys, 457 F.2d 242, 245 (7th Cir. 1972) ; United States v. Frontero, 452 F.2d 406, 410 (5th Cir. 1971) ; United States v. Knupp, 448 F.2d 412, 413 (4th Cir. 1971) ; United States v. Dockery, 145 U.S.App.D.O. 9, 447 F.2d 1178, 1182 (1971), cert. denied, 404 U.S. 950, 92 S. Ct. 299, 30 L.Ed.2d 266 (1971) ; United States v. Hendrickson, 442 F.2d 360 (3d Cir. 1971) ; Fernandez v. Meier, 432 F. 2d 426, 427 (9th Cir. 1970) ; United States v. Virga, 426 F.2d 1320 (2d Cir. 1970), cert. denied, 402 U.S. 930, 91 S. Ct. 1530, 28 L.Ed.2d 864 (1971) ; United States v. Gross, 416 F.2d 1205, 1214 (8th Cir. 1969), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1970). A petition alleging an abuse of the Court’s discretion must be supported by some factual allegations.


source: Caselaw Access Project

author: LEWIS, Chief Judge.

license: Public Domain

text:
    RISSLER & McMURRY CO., INC., a corporation, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1545.
    United States Court of Appeals, Tenth Circuit.
    Argued March 30, 1973.
    Decided June 19, 1973.

      Harry E. Leimback, Casper, Wyo., for appellant.
    Gordon S. Gilman, Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, and Grant W. Wiprud, Dept. of Justice, Washington, D. C., and of counsel, Richard V. Thomas, U. S. Atty., with him on the brief), for appellee.
    Before LEWIS, Chief Judge, BARRETT, Circuit Judge, and TALBOT SMITH , District Judge.

       Of the Eastern District of Michigan sitting by designation.

   LEWIS, Chief Judge.

This is an appeal from a judgment by the United States District Court for Wyoming denying a claim for refund of federal income -taxes for the calendar year 1965 by Rissler & McMurry Co., Inc. (taxpayer). Jurisdiction in this appeal rests upon 28 U.S.C. § 1291.

The material facts may be summarized. In 1965 the taxpayer made a successful bid on a construction contract offered by the city of Lander, Wyoming for the building and paving of certain roads within the city. Included in the city’s bid specification was the provision that the successful bidder could use a gravel pit owned by the city as a source of construction material upon the payment of two cents per ton or three cents per cubic yard. The taxpayer elected to use the city’s gravel pit. Subsequently, the city and taxpayer entered into an oral agreement which allowed material extracted from the gravel pit to be sold by the taxpayer to other parties upon approval by the City Council and payment of a royalty.

Work on the project was begun in June 1965. Taxpayer installed removable equipment worth $636,748.00 at the gravel pit. This equipment was subject to a depreciation allowance. Taxpayer then proceeded to extract 183,208 tons and 18,681 cubic yards of material during taxable year 1965. This included 183,000 tons and 7,949 cubic yards of aggregate for use in the city project and 208 tons and 10,732 cubic yards of aggregate sold to other parties. Taxpayer paid the city a royalty of $3,675.00 for aggregate used in construction of city roads and $309.35 for aggregate sold to other parties.

Taxpayer filed a timely tax return for 1965. In 1968 taxpayer filed a tax refund claim of $5,911.96 plus interest for a previously unclaimed depletion allowance on sand and gravel removed from the city’s gravel pit in 1965. The Internal Revenue Service rejected this claim for refund and was upheld by the district court.

In order for a taxpayer to qualify for a depletion allowance on taxable income he must come within the statutory purview of 26 U.S.C. § 611(a) which states:

In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary or his delegate.

The Commissioner of Internal Revenue, under the mandate of Section 611, developed regulations controlling depletion deductions. Section 1.611-1 (b) of the Treasury Regulations, 26 C.P.R. § 1.-611-1 (b), provides:

(b) Economic' interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relationship he possess [sic] a mere economic or pecuniary advantage derived from production.

Accordingly, the sole issue on appeal is whether the taxpayer possessed an “economic interest”, as required by statute and regulation, in a gravel pit owned by the city of Lander, Wyoming which would allow it to claim a deduction for depletion.

The controlling considerations in determining if a taxpayer has an economic interest in minerals entitling him to a depletion allowance are: (1) whether the taxpayer made a capital investment in the minerals in place and (2) whether the return on the taxpayer’s investment was realized solely from the extraction of the minerals. See Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 77 L.Ed. 489; Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347; Food Machinery & Chemical Corp. v. United States, Ct.Cl., 366 F.2d 1007, 1009, 177 Ct.Cl. 219.

The Supreme Court has taken great pains to distinguish between the requisite economic interest needed for a depletion allowance and other forms of economic advantage derived from use of minerals. In Helvering v. Bankline Oil Co., 303 U.S. 362, 367, 58 S.Ct. 616, 618, 82 L.Ed. 897, the Court stated:

But the phrase “economic interest” is not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit. See Thomas v. Perkins, 301 U.S. 655, 661, 57 S.Ct. 911, 81 L.Ed. 1324.

In Bankline the taxpayer was a processor of gas who had contracted with the owners of gas wells to extract and sell their gas. The taxpayer paid the well owners a percentage of the proceeds of the sales. The Court determined that the taxpayer only had a contractual interest in the producing wells and gas, therefore rejecting any depletion claims.

In two recent eases which invoked Barikline, the Supreme Court provided certain criteria for determining whether a taxpayer had an economic interest or merely an economic advantage in mineral properties. In Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747, taxpayers contracted with landowners to strip-mine coal off the latter’s land. The taxpayers were to receive from the landowners a fixed payment per ton for the coal removed. An economic interest allowing for depletion was asserted by the taxpayers who argued that their equipment, time and skill were tantamount to a capital investment in the coal. The Court held that the taxpayers did not have a sufficient economic interest in the coal for a depletion allowance based upon the following criteria and specific facts:

(1) that petitioners’ investments were in their equipment, all of which was movable — not in the coal in place; (2) that their investments in equipment were recoverable through depreciation —not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place . . . 359 U.S. 215, 225, 79 S.Ct. 656, 663.

Accordingly, a taxpayer must show more than an investment in equipment, which is depreciable, and a contract to remove mineral deposits off another’s land before a sufficient economic interest for depletion purposes is established.

Again, the Supreme Court was compelled to establish further guidelines as to what constitutes an economic interest in mineral properties in Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116. Paragon involved a contract between the Paragon Jewel Coal Company and certain contractors for the extraction of coal by the drift-mining method. The contractors were to deliver coal to Paragon for a fixed tonnage fee. The contractors had to dig numerous tunnels and ventilation shafts to recover the coal. The contract was for an indefinite time period although the contractors were not required to mine the coal to exhaustion. In rejecting the contractors’ claim for a depletion allowance the Court stated:

In any event, the right to mine even to exhaustion, without more, does not constitute an economic interest under Parsons, but is “a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.” Helvering v. Bankline Oil Co., 303 U.S. 362, 367, 58 S.Ct. 616, 82 L.Ed. 897 (1938). 380 U.S. 624, 634-635, 85 S.Ct. 1207, 1212.

Furthermore, the Court was not convinced that the indefinite time period of the contract was sufficiently different from the requirements in Parsons to warrant the finding of a depletable economic interest.

A review of the pertinent facts of this case in light of the criteria set forth by statute and the Supreme Court clearly supports the district court’s determination that the taxpayer, at most, possessed an economic advantage in the gravel pit. The taxpayer did not meet the Parsons and Paragon requirements for the necessary showing of a capital investment in mineral deposits. Rather, the facts disclose that the taxpayer had not made any permanent improvements at the gravel pit, and the short-term contract under which the taxpayer operated reflected no intention by the city to surrender its interest in the gravel. Furthermore, taxpayer did not meet the second essential statutory requirement for an economic interest, i.e., that it look solely to the extraction of gravel for a return on its investment. The taxpayer was under contract with the city to make street improvements for which it would be paid a sum certain. Any additional profits made from selling gravel to third parties were only minor when compared with the total contract price and certainly were not the sole basis for a return on taxpayer’s investment.

Accordingly, the judgment of the district court is affirmed.


author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Adam Alex LAWRANCE, Defendant-Appellant.
    No. 72-1607.
    United States Court of Appeals, Fifth Circuit.
    June 25, 1973.

      Stephen B. Murray, New Orleans, La. (Court-Appointed), for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Michael H. Ellis, Mary W. Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

This appeal presents an enduring question of evidence law — the admission of evidence of prior similar acts to show state of mind with regard to the crime charged — but in a context different from the usual. Lawrance was charged with selling heroin in violation of 26 U.S.C.A. §§ 4704(a) and 4705(a). He pleaded insanity but the jury found him guilty. During the trial the government introduced over objection testimony concerning previous sales of heroin by Lawrance to a government informant, as relevant to the elements of knowledge, intent, and specific intent. But those states of mind were not elements of the statutory crimes for which Lawrance was charged. The admission of this highly prejudicial but irrelevant evidence of extrinsic heroin transactions requires the conviction be reversed. While we reverse on this ground alone, we discuss — because of its importance in the event of retrial — the practice of mentioning the presumption of sanity in instructions to the jury.

The informant made the heroin purchase out of which this case arose on March 6, 1970. The indictments accused him of “knowingly, willfully, and feloniously” carrying out the prohibited acts. In his opening statement the prosecutor told the jury that the government must show that Lawrance did the prohibited acts “willfully, knowingly, and unlawfully.” Then further into the prosecutor’s statement the following colloquy occurred:

PROSECUTOR:
Now, in order to establish a common and lawful (sic) scheme or plan, or to show the requisite mental state of the mind of the defendant, the government will introduce—
DEFENSE COUNSEL:
I ask that we approach the bench. * * * [Unrecorded bench conference.]
COURT:
Let the record show that counsel for the defendant makes an objection to this coming opening argument, and the Court overrules the objection.
PROSECUTOR:
in order to show an unlawful plan or scheme in the mind of the defendant at the time of this sale, the government will offer evidence of other sales by the defendant to the confidential informant. .

The government’s informant testified that he had purchased heroin from Lawrance on numerous occasions, and he gave particulars as to the time and manner of several of those transactions. Counsel for Lawrance objected to this testimony, but the court admitted it after instructing the jury to consider the evidence of similar prior acts only in “determining intent, motive, or guilty knowledge on the part of the defendant with regard to the crime charged in this particular indictment.” In its instructions given at the close of the evidence the District Judge, in effect, defined the crimes charged as including the elements of knowledge, intent and specific intent and instructed the jury to limit its consideration of the evidence of the prior heroin sales to those elements.

The general rule bars the introduction of evidence of other criminal acts of the accused where the relevancy of such evidence depends on an inference from the other criminal acts to the character of the defendant and thence to the defendant’s guilt. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). The purpose of the rule is to exclude “evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” C. McCormick, Evidence (2d), § 190 (1972). Evidence of similar criminal acts “will be received for the purpose of showing knowledge, intent, motive, design, or scheme where such element is an essential of the commission of the offense.” Ehrlich v. United States, 238 F.2d 481, 484 (CA 5, 1956). Where intent is not an essential element of the offense charged, admission of evidence of similar offenses for the purpose of showing that element is reversible error. Hamilton v. United States, 409 F.2d 928 (CA 5, 1969) (sale of untaxed liquor, evidence of prior conviction for possession of tax paid liquor in dry county); Baker v. United States, 227 F.2d 376 (CA 5, 1955) (Possession of untaxed liquor, evidence of prior violations of internal revenue liquor laws).

We conclude that knowledge and intent are not essential elements of violations of 26 U.S.C.A. §§ 4704(a) and 4705(a). In United States v. Pittman, 439 F.2d 906, 908 (CA 5, 1971), though on a point not essential to our decision,, we expressed doubt that either knowledge or intent constituted elements of a violation of either of those statutes. The Supreme Court long ago decided that § 4705(a) had no requirement of any culpable state of mind, either knowledge or intent, as an essential element of the offense. United States v. Balint, 258 U.S. 251, 42 S.Ct. 301, 66 L.Ed. 604 (1922); United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922). This court soon adopted that same view. Guilbeau v. United States, 288 F. 731 (CA 5, 1923). In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 260, 96 L.Ed. 288, 299 (1952), the Supreme Court specifically approved the Balint and Behrman conclusion. United States v. Jones, 438 F.2d 461 (CA 7, 1971); Davis v. United States, 306 F.2d 317 (CA 8, 1962).

Although the constitutionality of § 4704(a) has been questioned, Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 (1928); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Supreme Court has not addressed directly the question of whether knowledge and intent are essential elements of that offense. Several factors convince us that § 4704(a) does not require knowledge or intent. Both § 4704(a) and § 4705(a) originated in the same congressional act; the two sections contain similar language; neither section mentions any requirement of state of mind; and both purport to regulate, in an analogous manner, the same subject. See, United States v. Dotterweich, 320 U.S. 277, 64 5. Ct. 134, 88 L.Ed. 48 (1943); Morissette v. United States, 342 U.S. supra at 260-261, 72 S.Ct. 240, 96 L.Ed. 298 (1952); United States v. Dillard, 376 F.2d 365 (CA 7, 1967); United States v. Crawford, 438 F.2d 441 (CA 8, 1971). But see, Graham v. United States, 257 F.2d 724 (CA 6, 1958), and United States v. Chiarelli, 192 F.2d 528 (CA 7, 1951) (which indicate that unknowing possession may constitute a defense).

Since neither knowledge nor intent was an element of the offenses, no logical basis exists for requiring the higher and more precise standard of culpability embraced in specific intent. Nor is there any indication that Congress included specific intent as an element of § 4704(a) or § 4705(a). Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L. Ed. 1495 (1945); Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534 (1944); Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943).

Thus the District Court admitted the informant’s testimony as relevant to matters which are not elements of the offenses charged. “The substantive evidentiary question here is one of relevancy . . .,” and the evidence was not relevant. Evidence of similar crimes — dubious at best — is prohibited without the saving grace of relevance to an element of the offense charged.

The command of Hamilton and Baker that there be a reversal is not mitigated by the fact that the court submitted the ease to the jury with instructions that the government had the burden of proving specific intent, a higher standard of proof than necessary. The admissibility of evidence of other criminal acts is the result of a process of weighing the obvious prejudice to the defendant against the probative value of the evidence with respect to the elements of the offense and concluding on balance that the interest of probative value must prevail. That equation collapses when the probative value interest is not real but spurious, relating not at all to the violations of law in issue and relevant only to elements that are not part of that violation. One can speculate that the harm to the defendant in reciting to the jury his other criminal acts which should not be mentioned in the case is in some immeasurable way overbalanced by erroneously requiring the jury to find specific intent, but it is pure speculation and not more than that.

United States v. Alston, 460 F.2d 48 (CA 5, 1972), is not contrary to what we decide. Without discussing the essential elements of § 4704(a) or § 4705(a), we held in that case that evidence of similar criminal activity was admissible. But in Alston the evidence of other criminal acts was relevant to show a similarity of method, which in turn tended to prove identity. Here no issue of similarity of method or identity was raised and the District Court limited the evidence to show state of mind.

Because of the possibility of a retrial we discuss the appropriate instruction to the jury regarding the presumption of sanity. In a criminal trial, once the defendant produces some evidence of insanity the presumption of sanity “vanishes” and the prosecution must prove sanity beyond a reasonable doubt. Blake v. United States, 407 F.2d 908 (CA 5, 1969); Gordon v. United States, 438 F.2d 858 (CA 5, 1971); Mims v. United States, 375 F.2d 135 (CA 5, 1967). The presumption of sanity has been described as “a rule stating that the defendant has the burden of producing evidence of his insanity at.the time of the offense.” C. McCormick, Evidence (2d) § 346 (1972). The presumption of sanity is not an intangible bit of substantive evidence inuring to the prosecution’s benefit but is “simply a convenient aid to rational determination . . ., based on the common experience of mankind that the overwhelming majority of us, regardless of our differences, quirks, and peculiarities, are of sufficient mental responsibility that we meet tests of criminal responsibility [and] not to be deified into something else by formalistic application to a situation totally foreign to its purpose.” Hackworth v. United States, 380 F.2d 19, 21 (CA5, 1967).

In United States v. Skinner, 437 F.2d 164 (CA5, 1971) we said that “the presumption of sanity has no effect after some evidence is introduced to rebut the presumption.” We concluded that the District Court had committed an obvious and substantial error in instructing the jury that “[w]here the defense is insanity there is a presumption in favor of sanity”, and we reversed under the plain error doctrine. The effect of that instruction was to charge the jury that “the presumption of sanity would continue to apply after evidence had been introduced which would overcome the presumption.” 437 F.2d at 166-67. In United States v. Harper, 450 F.2d 1032 (CA5, 1971), and United States v. Here-den, 464 F.2d 611 (CA5, 1972), without mentioning Skinner, we concluded that instructions to the jury which mentioned the presumption of sanity in an explanation of the government’s burden of proof did not constitute reversible error. The distinguishing features of these latter eases are that the instructions taken as a whole were not as onerous or prejudicial as the instructions in Skinner and merely mentioning the presumption did not have the effect of instructing the jury to consider the presumption as something of evidentiary value.

Although the instruction in this case is similar to that in Harper and Hereden, we cannot ascertain with certainty whether the effect of these instructions was to charge the jury to consider the presumption as evidence or whether the court merely “mentioned” the “presumption”. Therefore, as a prophylactic measure, we conclude that on retrial, if any, the District Court should refrain from mentioning the presumption of sanity in its instructions to the jury. Our conclusion that this is the better practice is based on the purpose of the “presumption”, which is only to place upon the defendant the burden of going forward with some evidence of insanity (which has been accomplished by the time the jury is instructed) and the danger that the jury will be confused or led to believe that the “presumption” is of some evidentiary value in their considerations.

Reversed and remanded.

      . 26 U.S.C.A. § 4704(a).
      “It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.”
      26 U.S.C.A. § 4705(a).
      “It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.”
      These statutes were repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq. (1972). The offense charged occurred prior to the effective date of the new act.

      . It had become evident in the course of the trial that the transactions about which the informant testified did not comprise a design, scheme, or plan. They were not a series of events culminating in the act charged. The commission of the act itself was not in issue, therefore, any evidence of a design or plan to commit the act was irrelevant. II Wigmore on Evidence, §§ 237, 300.

      . See also Fallen v. United States, 220 F.2d 946 (CA5, 1955), where defendant Trice was charged with wilfully and knowingly receiving, concealing and disposing of automobiles travelling in interstate commerce, knowing them to have been stolen, and conspiring with others to do the same. There was testimony that Trice was involved in changing numbers on the stolen cars. The court admitted over objection testimony of Goldman, a federal prisoner, that on another and unrelated occasion Trice had changed the numbers on two other stolen cars. This court reversed, saying:
      “We think that there could have been no real question of Trice’s criminal motive if, in fact, lie changed the numbers on the stolen automobiles. Proof of the commission of the act carried with it the evident implication of a criminal intent. In such instances, evidence of the perpetration of other like offenses is not needed to establish criminal motive or intent and is not admissible for such purpose. 20 Am. Jur., Evidence, Sec. 313, pp. 295, 296, Note 20. It is practically impossible for us to believe that the evidence was offered by the Government actually and in good faith to prove motive or intent. Trice had no notice of, nor opportunity to defend himself against, the criminal acts testified to by Goldman. As to Trice, Goldman’s testimony was most harmful, and its admission must result in a reversal of his conviction.” 220 F.2d at 948-949.

      . These sections originated in the Harrison Narcotic Act of 1914, 38 Stat. 785, 786.

      . United States v. Alston, 460 F.2d 48, 55 (CA5, 1972).

      . Relevance alone is not the key to this prosecutorial Pandora’s box. If the evidence is relevant to an element of the offense which is in issue the trial court must then evaluate the evidence to determine whether it is “plain, clear, and conclusive” that the defendant did in fact commit the other crimes. United States v. Broadway, 477 F.2d 991 (CA5, 1973). Assuming the evidence of extrinsic crimes is convincing and relevant to a material fact in issue the trial court must then weigh the probative value of the evidence against its inherent prejudieial effect. On those scales the court must also weigh the need for such probative evidence, i. e., if the prosecution has a strong case without the evidence of similar criminal acts then there is no need for the probative value of the evidence and it should be excluded. See discussion of United States v. Fallen, footnote 3, supra, and O. McCormick, Evidence (2d) § 190 (1972); for a similar analysis within the context of state law see, Comment, The Admissibility of Other Crimes in Texas, 50 Texas L.Rev. 1409 (1972). This weighing process is within the discretion of the trial judge, but the question of what constitutes essential elements of an offense is one of law for the appellate court.
      Arguably the prior criminal acts would have been admissible on the issue of whether Lawrance, who had a long history of schizophrenia characterized by periods of remission and exacerbation, was insane at the time of the sale in question. The issue before us is the admissibility of the evidence for the purpose for which offered and admitted, and we express no view on admission for purposes of showing a state of remission at the time of the offense charged, other than to say that if the prior transactions are relevant at all the prejudice inherent in bringing out that they were heroin purchase transactions, as opposed to transactions which shed light on remission versus exacerbation, can be strained out by the trial judge.

      . We reject the dictum to the contrary, stated as a conclusion and without analysis or supporting reasons, in United States v. Crawford, 438 F.2d 441 (CA8, 1971).

      . “The law, of course, presumes that a defendant is sane, but this presumption is rebuttable, and when a defendant introduces any evidence that he had a mental disease or defect at the time of the commission of the crime charged, then the government must establish beyond a reasonable doubt that the defendant was legally sane at the time of the commission of the crime.”


author: BARRETT, Circuit Judge. LEWIS, Chief Judge

text:
    Norman NEW RIDER, a minor, by his mother and next friend, Wilma Williams et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 1, PAWNEE COUNTY, OKLAHOMA et al., Defendants-Appellees.
    No. 72-1608.
    United States Court of Appeals, Tenth Circuit.
    May 25, 1973.
    Rehearing Denied June 20, 1973.

      Lewis, Chief Judge, concurred in result and filed opinion.

      Jeffrey I. Sandman, Asst. Atty. Gen., for Colorado Civil Rights Comm., James F. Reynolds, Director, Denver, Colorado, amicus curiae.
    John S. Boyken, John Paul Kennedy, Salt Lake City, Utah, for Ute Indian Tribe of the Uintah and Ouray Reservations ; Richard H. Bishop, Salt Lake City, Utah, of counsel, amicus curiae.
    Yvonne T. Knight, Native American Rights Fund, Boulder, Colo. (Charles F. Wilkinson, Native American Rights Fund, Boulder, Colo., on the brief), and Vincent L. Knight, Oklahoma City, Okl., for plaintiffs-appellants.
    Robert J. Scott, Pawnee, Okl. (William J. Perry, Pawnee, Okl., on the brief), for defendants-appellees.
    J. Stanley Pottinger, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Carlton R. Stoiber, R. Dennis Ickes, Daniel L. Bell, II, for Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., amicus curiae.
    William C. Wantland, Seminole, Okl., for Oklahoma Indian Rights Ass., Norman, Oklahoma, amicus curiae.
    Before LEWIS and BARRETT, Circuit Judges, and SMITH , District Judge.

       Of the Eastern District of Michigan sitting by designation.

   BARRETT, Circuit Judge.

Three minor Pawnee Indian students, by and through their next friends, appeal pursuant to 28 U.S.C.A. § 1291, from the Order of the trial court denying a permanent injunction and dismissing their complaints following a full evidentiary hearing. The appellants are members of the Pawnee Tribe. They were each enrolled as seventh grade students in the Pawnee Junior High School until they were indefinitely suspended on April 24, 1972.

The appellees are members of the Board of Education, the Principal and Superintendent of School District No. 1 of Pawnee County, Oklahoma. It is one school system, consisting of about 940 students, grades K through 12. There are three main ethnic groups among the students: some 61 percent white, some 33 percent Indian and some 6 percent black.

Jurisdiction is asserted under 28 U.S. C.A. § 1343(3) and (4) and 28 U.S.C.A. § 1331. The injunctive relief sought was predicated on allegations that the hair regulation at issue violated appellants’ rights under the First and Fourteenth Amendments and 42 U.S.C.A. § 1983. The appellants contend that their guarantees of freedom of speech, free exercise of religion, equal protection of the law and due process of law were violated. We affirm the summary dismissal entered by the trial court on the ground that there exists no substantial constitutional question cognizable in the federal courts.

The subject hair regulation is part of a school dress code which provides in material part as follows;

Hair should have no odd coloring or style. It should be tapered or blocked in the back and cannot touch the shirt collar or ears, and should be one-fourth inch above the eyebrows; sideburns must be no lower than the earlobe and face clean shaven .

There is no dispute that the hair style of the three appellants violated the regulation.

On May 1, 1972, following a hearing, the trial court issued a preliminary injunction. In ordering the reinstatement of the three appellants, the Court found that the wearing of long braided hair is an expression of a long-standing tradition and heritage of the Pawnee Indians, and that it was a symbol of religious identity. Following a hearing held on June 5, 1972, issuance of a permanent injunction, the Court reversed its prior findings. It held that no substantial constitutional questions cognizable in the federal courts existed. It dismissed the complaint. The Court stated that the plaintiffs should seek their remedy in the state courts.

On Motion for Reconsideration filed by plaintiffs-appellants, the lower court conducted a full evidentiary hearing on August 7, 1972. In a detailed Memorandum Opinion dated August 10, 1972, the trial court again found that the schoolboard dress-hair code did not: (a) violate any of the plaintiffs’ rights regarding any religious creed or belief, nor is the enforcement of the code a restriction of any religious belief, but ‘at most a restriction upon a religious act’; or (b) discriminate against plaintiffs on the basis of race, religion or culture. The trial court also found that wearing of long hair is not akin to pure speech, and that a federal constitutional issue must exist not only in mere form, but in substance, and not in mere assertion, but in essence and effect. We affirm.

Turning now to the record, we summarize, as follows:

(1) For appellants: Certain exhibits in evidence, together with the expert testimony of one Dr. Weltfish, an anthropologist, established that certain Pawnee Indian men and women wore their hair parted in the middle with two braids, one on each side. Dr. Weltfish testified that such long braided hair has racial and cultural significance to the Pawnees, particularly in relation to specific dances; further, she testified that from the viewpoint • of Pawnee theology the long braided hair has religious significance in that the Pawnees believed that the universe was created in terms of the cosmos and that the cosmos dictated the nature of the whole social, human, animal, vegetable and material order. She testified that the core of this theological belief is that everything the Pawnee does each day has religious significance. She stated that there were certain dances which required long braided hair. She acknowledged that in her book entitled “The Lost Universe” she did not refer to the Pawnee long braided hair in the sense of any religious significance. She did acknowledge that none of the Pawnee warriors wore long, braided hair, but rather roaches or a hair ridge standing up along the middle. On cross-examination she opined that other authors had not carefully noted Pawnee heritage and tradition in relation to hair styles and their significance.

The appellants, New Rider, Smith and Cummings, testified that they wished to wear their hair in long braids because of their pride in being Pawnee Indians. One Terry Williams, age 21, testified that the hair must be at least 6 or 7 inches long before one can start to braid it. On cross-examination, he testified that until eight or ten years ago the Indian dancers did not wear their hair long. On re-direct he stated that more of the young Indians are wearing long braided hair because of a renewed pride in their heritage. Sidney Moore, Sr., age 69, organized an Indian Dance Troupe which has travelled extensively. He learned the entertainment business from his participation with Buffalo Bill’s Troupe. When he was a boy he wore long braided hair, but had to cut it off when he went to the Government boarding school. He referred to such hair style as the “old traditional ways.” He sees a resurgence among the young Indian people to “regain their tradition, to learn their culture.” He acknowledged that long braided hair is important to the dancing troupe insofar as making a living because “we have to wear our hair long in order to be recognized as Indians in a public place where we perform.”

(2) For appellees: Leroy Holloway, Superintendent of Schools at Pawnee, stated that Rules and Regulations for students are necessary “to create an environment of learning” and that with only 47 teachers for 940 students, there must be “some kind of discipline code” including the dress code which incorporates the hair regulation. He opined that the dress-hair regulation here challenged provides school spirit, pride, and maturity for the student in the classrooms; he said that the regulation was initiated by the students in order to instill pride in their school and to create school spirit, without any intent to stifle speech. He testified that disagreement is encouraged. He stated that when the code was first adopted the Board allowed one exception at the specific request of Mrs. Cummings on behalf of her son which was thereafter revoked; and that the Board granted Mrs. Cummings a hearing following revocation, at which time she was accompanied by one John Trudell who remarked that the school and the town would be on its knees before “he left town.” He also testified that the Cummings family was the only family which had requested the exception and that when the Board granted it to the Cummings boy it did so with the understanding that his hair would not be permitted to grow longer during the school term.

Jim Childers, Junior High School principal, testified for the appellees that the challenged dress-hair code was in effect during the entire school term 1971-1972. Copies of all school regulations were supplied each student who in turn was asked to discuss them fully with their teachers. On each Monday the teachers were to submit to Childers the names of students who violated school regulations. None of the three Pawnee students here involved violated the hair code until about six weeks prior to termination of the third semester. Childers then spoke personally to each of them and afforded each three weeks to comply before he suspended them. He testified that he often enforced the hair code in relation to white students, without any problems. After the Court entered the temporary restraining order and the three plaintiffs were reinstated, Mrs. Cummings again informed Childers that her son was being abused. However, she did not give Childers any reasons.

Dr. Muriel Wright, Editor of the Chronicle of Oklahoma, Assistant Editor of the Oklahoma Historical Society since 1943, and Editor since 1965, and author of the book entitled “A Guide to the Indian Tribes of Oklahoma” relating to some 67 tribes, including the Pawnee Indians, testified for the appellees. She stated that there was no tradition or custom among the Pawnee Tribes relating to wearing their hair in long braided style, although she did acknowledge that some did in fact do so. She acknowledged that Pawnee culture and religion is highly integrated with most of the tribal practices and traditions.

Marvin Stokes, Superintendent of Schools at Byng, Oklahoma, who served 34 years either as principal or superintendent, testified for the appellees that the school system there consists of 17 percent Indian students, 15 percent Negro students, and the balance whites or Mexicans, some 1,500 students in all. He testified that Byng has a dress-hair code regulation in effect almost identical to the challenged regulation at issue here and that, in his opinion, there is a distinct relationship between its compliance and scholarship attainments of the students. He testified that schools in the area of Byng without such regulations do not attain the high scholarship attributable to the Byng school system. He also testified that the regulation instills pride and initiative among the students and that those students who are not well-groomed generally create trouble. Of particular interest, he testified that it would be practically impossible to enact a dress-hair code for different ethnic groups within a school system which would not create a disruptive atmosphere. While recognizing that there are different ethnic and racial cultures, he stated that the integrated school system cannot countenance different groups and remain one organization.

Appellants contend that our decision in Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972), does not control in the case at bar in light of fundamentally distinguishable facts bearing upon religious, cultural and racial issues. We did note in that decision — involving, as here, school hair codes — that no claim was made of any racial or religious discrimination. The complaining students in Freeman simply wished to express their individualities by wearing their hair so long that they violated the school hair codes. They contended that such expression was guaranteed them under the First Amendment free speech clause. In Freeman we held:

The states have a compelling interest in the education of their children. The states, acting through their school authorities and their courts, should determine what, if any, hair regulation is necessary to the management of their schools. 448 F.2d at 261.

We explicitly held that the wearing of long hair is not akin to pure speech. We re-affirm that holding and thus put down any challenge to the subject regulation by the appellants here on a First Amendment free speech-basis.

The instant action was filed on April 28, 1972, for injunctive relief. No state court remedy had been sought. We held in Freeman v. Flake, supra, that “the remedy provided by § 1983 is supplementary to any pertinent state remedy” and that “a federal constitutional question must exist ‘not in mere form, but in substance, and not in mere assertion, but in essence and effect.’ ” 448 F.2d at 261. While the appellants did not first seek a pertinent state remedy prior to filing this action in the federal district court below as directed by Freeman v. Flake, supra, we shall not invoke the doctrine of abstention in light of the passage of time and the attendant need to resolve the issues in dispute.

Our careful review of the record has not disclosed to us any facts which would give rise to a federal court’s duty to entertain the complaints or to afford any relief. Federal courts have the duty to entertain only solid claims of constitutional restraints under “col- or” of state law. Smith v. State of Kansas, 356 F.2d 654 (10th Cir. 1966), cert, denied, 389 U.S. 871, 88 S.Ct. 154, 19 L.Ed.2d 151 (1967). Courts must conduct the “balancing test” referred to in Barker v. Wingo, Warden, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in avoiding rigidity which would frustrate common sense, even when dealing with constitutional rights. Constitutional rights, including First Amendment rights, are not absolutes. Courts must balance them against a compelling public interest. Christian (Echoes National Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir. 1972), U. S. appeal pending. We cannot condemn the subject regulation unless it does in fact impinge on the exercise of fundamental constitutional rights or liberties. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

In this case there is neither a fundamental right at issue nor a suspect classification being applied. The hair code regulation bears a rational relationship to a state objective, i. e., that of instilling pride and initiative among the students lending to scholarship attainment and high school spirit and morale. It can hardly be contended from this record that the hair code regulation has “ . . .no other purpose . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them ...” United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968).

We believe that the same rationale applied by the Supreme Court in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which upheld the constitutionality of legislation punishing the destruction or mutilation of Selective Service Certificates applies here. There the Court rejected the contention that “ . . .an apparently limitless variety of conduct [or appearance] can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea” and held that Government regulation of speech-related conduct is permissible:

. if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 391 U.S. at 376, 377, 88 S.Ct. at 1679.

Although no precise formula has been developed, the Courts have held that the Fourteenth Amendment permits the states a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the states’ objectives. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

The very thrust of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), was that “education is perhaps the most important function of state and local governments” and that only by amalgamating children of various races, colors, cultural, ethnical and environmental backgrounds can the public schools become the effective “marketplace of ideas” for the benefit of all students. Common sense dictates that some uniform regulations are necessary in order to maintain order, spirit, scholarship, pride and discipline in the operation of such a school system.

' In the recent case of San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the Supreme Court held that though education is one of the most important services performed by the State, it is not within the limited category of rights recognized by the Supreme Court as guaranteed by the Constitution. Significantly the Court rejected the “nexus” contentions of the appellees: That it is the duty of the Court to order equal school district ad valorem tax assessments and to distribute the proceeds realized therefrom equally on a statewide basis in per-pupil expenditures on the ground that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms, and to intelligent utilization of the right to vote. The Court rejected these arguments, reasoning that “the logical limitations on appellees’ nexus theory are difficult to perceive.” 411 U.S. at 37, 93 S.Ct. at 1299. (Emphasis ours). The Court declined to condemn the Texas legislative judgment in conferring on political subdivisions the power to tax local property to supply revenues for local purposes, noting that “this Court has often admonished against such interferences with the State’s fiscal policies under the Equal Protection Clause,” citing to Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940), for the holding that members of a state legislature:

enjoy a familiarity with local conditions which this Court cannot have; the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. 309 U.S. at 88, 60 S.Ct. at 408 (Emphasis ours).

That there exists “some inequality” in a school system is not sufficient ground to strike down a whole system, McGowan v. Maryland, supra, and it is only where state action impinges on the exercise of fundamental constitutional rights or liberties that the court may interfere with its dedication to local control of education. Dunn v. Blumstein, supra; Shelton v. Tucker, supra.

There is nothing inherently “suspect”, in a constitutional sense, in the subject dress-hair code regulation. It was not promulgated on the basis of race as condemned in Brown v. Board of Education, supra, or upon national origin as condemned by Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948), or upon alienage as condemned in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), or upon indigency as condemned in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), or upon illegitimacy as condemned in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

We believe that we would create a veritable quagmire for school boards, administrators, and teacher personnel, to attempt to wade through in their promulgation and enforcement of dress-hair codes which they may deem necessary to accomplish the objectives we have previously referred to, were we to hold that the subject dress-hair regulation implicates basic constitutional values. We need only ponder — without deciding— what exceptions beyond those urged here might be constitutionally mandated upon the appellees should the appellants prevail here. For example, from a strict Equal Protection approach, we might ask how a school board could draft a dress-hair regulation — or for that matter other such allied regulations — which would not impinge upon or interfere with a personal held belief that is sincere and meaningful in the life of its possessor (a student) , parallel to that filled by the orthodox belief in God. We are, of course, referring to religiously held beliefs of conscientious objectors. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Polsky v. Wetherill, 455 F.2d 960 (10th Cir. 1972); United States ex rel. Donham v. Resor, 436 F.2d 751 (2nd Cir. 1971); Bates v. Commander, First Coast Guard District, 413 F.2d 475 (1st Cir. 1969), No prescribed “belief” standard applies in such cases. The central core or theme is one of personal sincerity and belief. We shall not assume the responsibility of undermining the operations of the public school system by the various states through their duly chosen school authorities on such tenuous grounds. The judiciary is not designed to operate and manage school systems.

Affirmed.

LEWIS, Chief Judge

(concurring in the result).

I concur in the result but do not consider the case to present the complexities that my Brother Barrett’s opinion would seem to indicate and thus find it unnecessary, and undesirable, to give approval to some of the views and statements contained in the main opinion.

The plaintiffs here attack the subject hair code as violative of their right to free speech, due process, and as discriminatory to their race and religion. In Freeman v. Flake, 10 Cir., 448 F.2d 258, we held that no substantial federal question was present, per se, in a school hair code such as the one here considered. Freeman is controlling and need not be re-examined to support affirmance. Plaintiffs, however, make the additional contention, not considered in Freeman, that this particular code is discriminative^ oriented as to race and religion. The record simply does not support these claims. More than two-thirds of the students affected by the code are white and the impact of the regulation is not unique to the Pawnee students. Nor is the code religiously oppressive to the Pawnee in a judicially recognizable manner. The Pawnee are near-pantheists, their every act having religious significance in their basic desire to live in harmony with the Universe. Hair styles, as the trial court correctly recognized, have traditional but variable significance to the Pawnee according to the trend of modern custom or a desire to renew or popularize the style of their forefathers. Their present contention of religious oppression rises no higher under this record than a desire to express pride in their heritage through wearing long braided hair. Their desire so to do is understandable but not a constitutionally protected right.


author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mary Elaine Black STORM, Defendant-Appellant.
    No. 72-3138
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 22, 1973.

      Jeffrey M. Friedman, James A. Burroughs, Austin, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Dan Alfaro, Asst. U. S. Atty., Laredo, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   JOHN R. BROWN, Chief Judge:

Appellant launches a three phased attack on her conviction of possession with intent to distribute 643 pounds of marijuana, a violation of 21 U.S.C.A. § 841. First, she contends that the trial Judge erred in overruling her motion to suppress the fruits — or, more precisely, the weeds — of an unlawful search. Next, she contends that the trial Judge’s 118 question examination of her constituted a departure from his role of detached neutrality and a violation of due process. Finally she would have us hold that the trial Judge’s failure to ask each prospective juror if he or she would credit the testimony of a police officer or government agent over that of another witness merely because of the official capacity of the officer is reversible error. Finding Appellant’s first argument to be meritorious, we reverse without considering her other points.

A Pastoral Interlude

When Mary Elaine Black Storm agreed to interrupt her weekend visit with a step-sister in Austin in favor of a camping jaunt with casual friend David Seis to Falcon Lake, little did she know of the calamitous consequences of that choice. She and Seis, along with the Appellant’s two-year-old daughter, departed from Austin, Texas — destination Falcon Lake — on the morning of March 8, 1972, in Seis’s 1972 white Chevrolet pickup with attached camper. They spent that night in the camper. The following day was spent largely in piscatorial pastimes. Seis left the campsite alone in the truck for several hours.

During the night of the 9th, Appellant’s daughter became ill. In the wee hours of the morning Appellant decided that she must seek medical attention for her daughter. All left the campsite together, but Seis rode only as far as a nearby Gulf Station.

Meanwhile, on March 9, 1972, Immigration Officer George P. Newman of the Hebbronville Station, United States Border Patrol, received a disturbing request on the telephone from a person claiming to be Narcotics Agent Billy Boyd of the Texas Department of Public Safety. The phone caller requested the Border Patrol to “take the heat off” the highway at Hebbronville between 5:00 and 7:00 a. m. on the morning of March 10, 1972, for a white 1972 Chevrolet pickup with a camper. Supervisor Newman relayed the information received to the United States Customs Bureau and his subordinates, Patrolmen Jerome Ostrowski and Joe Garza. Presumably because this was a Customs matter, Newman gave no special instructions to the Border Patrolmen- — they were merely instructed to go about their normal routine. The Customs Bureau, however, did not ignore it. They sent Customs Agent Richard Lew to Hebbronville where he made contact with Border Patrolmen Ostrowski and Garza. He gave them a walkie-talkie to notify him when the truck was sighted.

At about 3:30 in the morning the Border Patrolmen observed Appellant driving north on Highway 16 in Seis’s camper. They notified Agent Lew and proceeded to stop the vehicle. After satisfying himself that the Appellant was a United States citizen, Patrolman Ostrowski requested that she open the back of the camper so that he could search for aliens. When the camper was opened, the agent detected the strong odor of marijuana tightly wrapped in cellophane bags. The rest of the story need not be recounted. Some 643 pounds of marijuana were found throughout the camper. This prosecution followed.

Borders Of The Fourth Amendment

The search took place at Hebbronville, Texas approximately 55 miles north of the International border. The government seeks to bring the search within the broad and liberal ambit of the term “border search”. They thus seek to envelop the actions of the arresting officers here with the extensive panoply of statutorily-created, judicially-recognized powers to search without a warrant. 8 U.S.C.A. § 1357; 19 U.S. C.A. §§ 482, 1581, and many others; United States v. McDaniel, 5 Cir., 1972, 463 F.2d 129; United States v. Wright, 5 Cir., 1973, 476 F.2d 1027; United States v. Thompson, 5 Cir., 1973, 475 F. 2d 1359; United States v. De Leon, 5 Cir., 1972, 462 F.2d 170; United States v. Maggard, 5 Cir., 1971, 451 F.2d 502; United States v. Bird, 5 Cir., 1972, 456 F.2d 1023; United States v. Hill, 5 Cir., 1970, 430 F.2d 129; United States .v. Arroyave, 5 Cir., 1973, 477 F.2d 157 [1973]. But a badge and a hat are not impregnable talismans merely because of the elasticity of our Nations’ perimeter.

Ordinarily border searches are conducted at, or very near, the border. “The statutory authority under which border searches are conducted designates a border crossing * * * as the event giving rise to the authority to conduct a border search.” United States v. Cristancho-Puerto, 5 Cir., 1973, 475 F.2d 1025 (Simpson, J., Dissenting from the denial of rehearing en banc). When a person or vehicle is-detained at the border just after entering the Country, the agent’s statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause, of the search. E. g., Lane v. United States, 5 Cir., 1963, 321 F.2d 573; Blackford v. United States, 9 Cir., 1957, 247 F.2d 745; King v. United States, 5 Cir., 1958, 258 F.2d 754. Presumably, they are limited only by common standards of decency and propriety. But with respect to situations which will not justify an extended border search, “those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search.” Carroll v. United States, 1925, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543, 552.

Of course the vehicle or person to be searched does not have to have crossed the border himself if there are sufficient facts known to the arresting officers and disclosed on the record to indicate that they have been in contact with people or things known to have crossed the border. United States v. Hill, supra; United States v. Garza, 5 Cir., 1973, 474 F.2d 1345.

Where there is no indication or record basis for believing that the vehicle has recently crossed the border or been in contact with those who have, however, mere proximity to it will not suffice. The circumstances surrounding the search must give rise to a “reasonable suspicion” that an offense has been committed or that a forbidden person or substance is hidden. McDaniel, supra; Morales v. United States, 5 Cir., 1967, 378 F.2d 187, 189.

In Marsh v. United States, 5 Cir., 1965, 344 F.2d 317, we invalidated a search by a Texas constable which occurred 63 miles from the border. Acting upon information received from a United States Customs Agent to be on the lookout for a certain vehicle, a Texas constable stopped the Defendant’s car when it came within his jurisdiction. The Court recognized the very extensive authority of Customs and Immigration officers to search and the elasticity of the border for such purposes, but held nonetheless that the search following this stop had to be judged on the basis of a reasonable assessment of the totality of circumstances. Because the arresting officer had no knowledge other than the fact that he had been requested to be on the lookout and the fact that the record failed to reveal the reason which justified the notifying officer’s suspicions, the Court held that the search failed to fit within the aegis of the “border search” exception to the Fourth Amendment’s warrant requirement.

The government would have us distinguish Marsh on the basis of the status of the arresting officer. Thus, they contend that the Texas constable in Marsh could only arrest and search with probable cause. But the government argues that federal officers possess statutory authority to search on the basis of a reasonable suspicion. Without determining the matter or even intimating our views as to the merits of this distinction we recognize that our Brothers of the Second Circuit have held that “A customs officer’s unique power to conduct a ‘border search’ is coextensive with the limits of our international border areas, and a search and seizure within these areas by a customs officer, reasonable enough under these circumstances, could perhaps be challenged as violative of the Fourth Amendment if conducted by different officials elsewhere.” United States v. Glaziou, 2 Cir., 1968, 402 F.2d 8, 12. But this ignores the clear holding of Marsh. The search was not invalidated there because it was conducted by a state rather than a federal officer. It was invalidated because the record did not detail sufficient facts known or made known to the arresting officer to support a reasonable suspicion that the vehicle had crossed the border, been in contact with those who had, or contained unauthorized aliens or contraband. Indeed, we have no doubt that a search by a state official acting upon the well-founded direction of federal officers or a combination of them could come within the limits of a border search.

Juxtaposing Marsh with the case at bar we have the following comparison. In Marsh, a 63 mile inland search by a state officer acting on the affirmative direction of Customs officials was invalidated. Here, a 55 mile inland search was conducted by federal officials in spite of — rather than at the request of — the plea by state law enforcement officials to “take the heat off”. The total absence of any record fact, supported or unsupported, which would justifiably arouse the officers’ suspicions compels us to apply Marsh, and reverse. Our holding is in no way a denigration of the officers’ statutory powers. We merely hold that the record must clearly reveal the circumstances which support the decision to search. This record does not.

Reversed.

      . See United States v. Gassaway, 5 Cir., 1972, 456 F.2d 624.

      . Falcon Lake or Reservoir is a man-made reservoir. Its waters come from the Rio Grande, thus, it is part of the international boundary between Mexico and the United States.

      . For a discussion of the relationship and distinctions between the powers and duties of United States Customs Officers and United States Immigration Officers see United States v. Thompson, 5 Cir., 1973, 475 F.2d 1359 [1973]. See also United States v. McDaniel, 5 Cir., 1972, 463 F.2d 129.

      . There is some conflict in the government’s case at this point. Patrolman Ostrowski steadfastly maintained that the stop was a routine one made to locate unauthorized aliens. He specifically denied that the information he had received from his supervisor Patrolman Newman or the contact that he had had with Customs Agent Dew had anything to do with his decision to stop the vehicle. Agent Lew, on the other hand, testified that the stopping of the white camper was made because of the curious and suspicious information that Patrolman Newman had received over the telephone.

      . By administrative declaration, the Immigration Officer’s statutory power to search without a warrant extends to all points within 100 air miles from an external boundary of the United States. 8 C.F.R. § 287.1(a)(2). United States v. Thompson, supra. But this does not totally free searches within such perimeter from exacting scrutiny. See United States v. Garcia, 5 Cir., 1971, 452 F.2d 419 (35 mile inland search upheld on basis of informant’s tip and constant surveillance by government agents); United States v. Reagor, 5 Cir., 1971, 441 F.2d 252 (registered drug addict stopped 60 miles inland at first town after being observed crossing border); Walker v. United States, 5 Cir., 1969, 404 F.2d 900 (defendant who was searched once at border was subject to second search 45 miles inland on basis of confidential til) and government surveillance) ; Ramirez v. United States, 5 Cir., 1959, 263 F.2d 385 (defendants stopped at regular check point 75 miles inland were extremely nervous and evasive). Of. Smith v. United States, 5 Cir., 1967, 385 F.2d 34 (search occurring 175 miles from border justified by finding of probable cause). We do not mean to intimate that the officers do not possess the authority to make a warrantless search within the prescribed limits. We only hold that there must be a record showing that the vehicle or its passengers have recently crossed the border or been in touch with those who have if a warrantless search is to be justified as a “border search”.


author: McCREE, Circuit Judge.

text:
    Phyllis B. HETRICK, Plaintiff-Appellant, v. Robert R. MARTIN, President of Eastern Kentucky University, and the Board of Regents of Eastern Kentucky University, Defendants-Appellees.
    No. 72-2168.
    United States Court of Appeals, Sixth Circuit.
    Argued AprE 12, 1973.
    Decided June 15, 1973.

      Robert Allen Sedler, Lexington, Ky., for plaintiff-appellant.
    Ed W. Hancock, Atty. Gen. of Kentucky, Frankfort, Ky., George T. Ross, Richmond, Ky., John W. Palmore, Eastern Kentucky University, Richmond, Ky., John W. Palmore, Richmond, Ky., for defendants-appellees; John W. Palmore, George T. Ross, Richmond, Ky., on brief.
    Before PECK, McCREE and KENT Circuit Judges.

       Judge Kent participated in the decision in this case and concurred in this opinion prior to his death on May 28,1973.

   McCREE, Circuit Judge.

This appeal requires us to decide whether the First Amendment prevents a state university from discharging a teacher whose pedagogical style and philosophy do not conform to the pattern prescribed by the school administration. The district court, sitting without a jury, held that the Constitution did not bar officials of Eastern Kentucky University from refusing to renew plaintiff’s teaching contract on the ground of impermissible deviation from the teaching standards thought appropriate by her superiors. We affirm.

Plaintiff Phyllis Hetrick was employed as a nontenured assistant English professor at Eastern Kentucky for the 1969-70 school year, and during her first semester was assigned to teach two sections of freshman composition, one sophomore literature course, and an upper level modern drama course. Her troubles with the school administration apparently began when unnamed students as well as the parents of one student complained about certain of her in-class activities. Specifically, at one point, in an attempt to illustrate the “irony” and “connotative qualities" of the English language, she told her freshman students “I am an unwed mother.” At the time, she was a divorced mother of two, but she did not reveal that fact to her class. Also, she apparently on occasion discussed the war in Vietnam and the military draft with one of her freshman classes. The district court found that even though the school administration was concerned about the appropriateness of these occurrences, “it does not appear that any of the faculty members felt that Dr. Hetrick had on those particular occasions exceeded the bounds of her teaching prerogative.” The student complaints during October and November 1969 allegedly centered on their inability to comprehend what she was attempting to teach them or what was expected of them, although no students were produced at trial to testify that he or she had complained about or was dissatisfied with plaintiff’s teaching methods.

Other conflicts between Dr. Hetrick and her superiors developed. She did not obtain her PhD until late in her second semester, although she agreed that she would do so by the close of the fii'st semester. She covered only 11 plays in her modern drama course, from a textbook that had been ordered by her predecessor, and the head of the English Department, Dr. Thurman, testified that plaintiff had been told that she was expected to cover between 20 and 25 plays and that he thought the work load she assigned was too light.

In February 1970, Dr. Thurman convened a “secret evaluating committee” of four other faculty members of the English Department to meet with him. The committee, according to Dr. Thurman, was to evaluate all the nontenured teachers. Dr. Thurman recommended to the committee that plaintiff not be rehired for the following year because: her freshman class assignments were inconclusive; she was inclined to discuss extraneous matter in class; she lacked “a sense of camaraderie” and did not seem to adjust to the other members of the English Department; and she had not fulfilled her PhD requirements as promised. The committee voted to terminate Dr. Hetrick.

The district court found that these reasons asserted by Dr. Thurman were “supported by fact.” However,

the court finds from the tenor of the evidence, that the nonrenewal of Dr. Hetrick’s contract was not based so much on those specific reasons, as it was on the feeling of Dr. Thurmond [sic] and the other faculty members of the English Department that Dr. Hetrick’s teaching philosophy and the manner in which she implemented it were not adaptable to the achievement of the academic goals of the University.

The evidence to which the court referred consisted in part of plaintiff’s testimony and that of her students, and the testimony of the defendants concerning what was expected of teachers at Eastern Kentucky. The school administration considered the students as generally unsophisticated and as having “somewhat restrictive backgrounds,” and for this reason apparently expected the teachers to teach on a basic level, to stress fundamentals and to follow conventional teaching patterns — in a word, to “go by the book.” Plaintiff’s evidence, on the other hand, tended to show that her teaching emphasized student responsibility and freedom to organize class time and out-of-class assignments in terms of student interest, all in an effort, she claims, to teach them how to think rather than merely to accept and to parrot what they had heard.

After her termination by the University, plaintiff brought this action under 42 U.S.C. § 1983 for declaratory and injunctive relief against the president and regents of Eastern Kentucky University. She asserted that her First and Fourteenth Amendment rights had been violated by her termination without a hearing or written statement of reasons, on an arbitrary basis, for making in-class statements about the war and the draft, and because of her beliefs and ideas. The intervening decisions of the Supreme Court in Board of Regents of State College v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), narrowed the issue in this case to whether plaintiff had been terminated for conduct on her part protected by the First Amendment. See Perry v. Sindermann, supra, 408 U.S. at 596-598, 92 S.Ct. 2694.

The district court concluded that the decision not to renew plaintiff’s contract was the result of defendants’ “concern for her teaching methods and ability,” and was not prompted by her exercise of First Amendment rights. In discussing the scope of the protection afforded teachers by the First Amendment, the court stated:

The First Amendment guarantee of academic freedom provides a teacher with the right to encourage a vigorous exchange of ideas within the confines of the subject matter being taught, but it does not require a University or school to tolerate any manner of teaching method the teacher may choose to employ. A University has a right to require some conformity with whatever teaching methods are acceptable to it. In this case it simply appears that Dr. Hetrick’s teaching techniques were not acceptable to the University. The court is not in a position to weigh the merits of Dr. Hetrick’s educational philosophy — it may be that her methods of teaching were and are more desirable than those embraced by the other members of the English Department — but the fact that the University decided that they were not and chose not to renew her contract, does not mean that her constitutional rights to academic freedom and freedom of speech were impinged.

In a memorandum opinion filed with the court’s findings of fact and conclusions of law, the court elaborated on its findings in this regard:

It is Dr. Hetrick's position that the non-renewal of her contract resulted from certain statements she made in her classes relating to the Vietnam War and the military draft. Were this contention adequately corroborated it may be that relief would be proper, however, the evidence produced at the hearing leads only to the conclusion that the University’s determination not to rehire was based solely upon concern for her pedagogical attitudes. Although the court is inclined to believe that the classroom inadequacies that Dr. Hetrick was alleged to have displayed — inconclusive assignments, extraneous classroom discussions, and insufficient coverage of suggested materials — were largely superficial and thus easily correctable, it is not the duty of the court to evaluate the wisdom of the University’s decision not to renew the contract. It simply seems that Dr. Hetrick’s teaching methods were too progressive, or perhap less orthodox than the other faculty members in her department felt were conducive to the achievement of the academic goals they espoused. The court must conclude that a State University has the authority to refuse to renew a non-tenured professor’s contract for the reason that the teaching methods of that professor do not conform with those of the tenured faculty or with those approved of by the University.

On appeal, plaintiff has raised two issues: does it violate the First Amendment for a public university to terminate a teacher because her teaching methods and educational philosophy do not conform with those approved by the university; did the district court err in concluding that the decision to terminate was not based on or influenced by constitutionally protected statements she made in the classroom, i. e., the “unwed mother” remark and statements about the Vietnam war and the draft?

With respect to the latter issue, assuming arguendo that the uttering of these in-class statements would be protected by the First Amendment, we conclude upon examination of the record that the findings of the district court are fully supported by the evidence and that plaintiff was not discharged because of any statements she may have made.

Thus, we are squarely presented with the question whether the administration of a public school may, consistent with the First Amendment, fail to renew a nontenured teacher because of displeasure with her “pedagogical attitudes.” We conclude, as did the district court, that it may.

This is not a case of dismissal of a teacher for exercising her right as a citizen to comment on matters of public concern, see Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); cf. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), or a case of a state’s attempting to regulate the fitness and competence of its teachers by investigating the teachers’ out-of-class associations, see Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957), or even a case of a state’s effort to restrict in-class utterances or assignments in order to maintain curriculum control, compare Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969); Mailloux v. Kiley, 323 F.Supp. 1387 (D. Mass.), aff’d, 448 F.2d 1242 (1st Cir. 1971); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970), with Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (1973); Parker v. Board of Education, 237 F.Supp. 222 (D.Md.), aff’d, 348 F.2d 464 (4th Cir. 1965), cert. denied, 382 U.S. 1030, 86 S.Ct. 653, 15 L.Ed.2d 543 (1966); cf. Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); see generally Developments in the Law — Academic Freedom, 81 Harv.L.Rev. 1045, 1051-54 (1968).

Instead, this is a case of the non-renewal of a nontenured teacher, who was not even entitled to notice and hearing upon receipt of the university’s decision not to renew her contract. Board of Regents of State College v. Roth, supra. Although her renewal could not have been denied on a basis that invaded a constitutionally protected interest such as her interest in freedom of speech, Perry v. Sindermann, supra, 408 U.S. at 597, 92 S.Ct. 2694, under the holding in Board of Regents of State College v. Roth, supra, she presumably could have been terminated for entirely arbitrary reasons that did not invade First Amendment rights. She seeks to escape the effect of this principle by claiming that what is at issue here is' her constitutional right to “teach her students to think” and that the First Amendment protects her from termination for using teaching methods and adhering to a teaching philosophy that are “well-recognized within the profession” (although it does not appear that plaintiff introduced expert testimony on this question, Compare Mailloux v. Kiley, supra, 323 F.Supp. 1387). Plaintiff would thus have us convert the vague, inclusive term “teaching methods” into a specific, protected form of speech that cannot be considered by a school administration in determining whether a nontenured teacher should be renewed. In effect, plaintiff would have us substitute the First Amendment for tenure, and would thereby succeed in elevating contract law to constitutional status.

We do not accept plaintiff’s assertion that the school administration abridged her First Amendment rights when it refused to rehire her because it considered her teaching philosophy to be incompatible with the pedagogical aims of the University. Whatever may be the ultimate scope of the amorphous “academic freedom” guaranteed to our Nation’s teachers and students, Healy v. James, 408 U.S. 169, 180-181, 92 S.Ct. 2338, 33 L. Ed.2d 266 (1972), see generally Developments in the Law — Academic Freedom, supra, it does not encompass the right of a nontenured teacher to have her teaching style insulated from review by her superiors when they determine whether she has merited tenured status just because her methods and philosophy are considered acceptable somewhere within the teaching profession. A contrary holding would effectively emasculate the holding in Board of Regents of State College v. Roth, supra, by rendering every nonrenewal decision a likely candidate for a court suit, and we decline to accomplish the sub silentio overruling of that recent Supreme Court decision as well as our own in Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767 (1972).

For the foregoing reasons, and the reasons advanced by the district court, the judgment of the district court is affirmed.

      . Compare, e. g., Mailloux v. Kiley, 323 F.Supp. 1387 (D.Mass.), aff’d, 448 F.2d 1242 (1st Cir. 1971), with Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36D.Ed.2d 695 (1973).