Peggy BURTON, Plaintiff-Appellant, v. CASCADE SCHOOL DISTRICT UNION HIGH SCHOOL NO. 5 Et Al., Defendants-Appellees

(dissenting):

I dissent regarding the relief to which Ms. Burton is entitled.

Reinstatement is the appropriate remedy for an individual who has been removed from her job in violation of the Constitution. Most courts have not treated reinstatement as an “extraordinary equitable remedy.” In fact, they have ordered reinstatement as a matter of course, even in cases involving nontenured teachers. See, e. g., Gieringer v. Central School District No. 58, 477 F.2d 1164 (8th Cir.) (reversing unpublished district court decision), cert. denied, 414 U.S. 832 , 94 S.Ct. 165 , 38 L.Ed.2d 66 (1973); Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973), affg. 346 F.Supp. 396 (D.Neb.1972); Rolfe v. County Board of Educ., 391 F.2d 77 (6th Cir. 1968), affg. 282 F.Supp. 192 (E.D.Tenn.1966); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) (en banc) (reversing 242 F.Supp. 721 (E.D.N.Car.1965)), cert. denied, 385 *855 U.S. 1003 , 87 S.Ct. 706 , 17 L.Ed.2d 542 (1967); Chase v. Fall Mountain Regional School Dist., 330 F.Supp. 388 (D.N.H. 1971); Hanover Twp. Fedn. of Teachers v. Hanover Community School Corp., 318 F.Supp. 757 (N.D.Ind.1970), affd., 457 F.2d 456 (7th Cir. 1972); McGee v. Richmond Unified…

This is an appeal by a non-tenured, homosexual schoolteacher from a district court order granting her damages and attorney fees for what was adjudged her wrongful dismissal, but refusing to reinstate her to her old position. We affirm.

Appellant Peggy Burton began to teach at Cascade High School in July 1970. She was in the second month of her second full year as a teacher of biology, earth sciences, ecology, consumer education, and business mathematics, and as supervisor and referee of girls’ sports activities. The defendant Federico, the school principal, confronted her with information coming to him from the mother of a student that appellant was a homosexual. At a conference with Federico and, again at an appearance before a special school board meeting, appellant acknowledged that she was a “practicing homosexual.”

At the meeting on October 18, 1971, a resolution was adopted suspending Ms. Burton upon “recommendation of the administration based on her admitting to be a homosexual.” Later, allegedly on advice of counsel, the board revised its October 18 resolution to read:

This was done in order that the dismissal might comply more closely with Ore.Rev. Stat. §…

512 F.2d 850 13 Fair Empl.Prac.Cas. 283 , 9 Empl. Prac. Dec. P 9904 Peggy BURTON, Plaintiff-Appellant, v. CASCADE SCHOOL DISTRICT UNION HIGH SCHOOL NO. 5 et al., Defendants-Appellees. No. 73-1568. United States Court of Appeals, Ninth Circuit. March 28, 1975. Charles F. Hinkle (argued), Portland, Or., for plaintiff-appellant. Robert W. DeArmond, Salem, Or., for defendants-appellees. Before LUMBARD, * MERRILL and WRIGHT, Circuit Judges. OPINION PER CURIAM: 1 This is an appeal by a non-tenured, homosexual schoolteacher from a district court order granting her damages and attorney fees for what was adjudged her wrongful dismissal, but refusing to reinstate her to her old position. We affirm. 2 Appellant Peggy Burton began to teach at Cascade High School in July 1970. She was in the second month of her second full year as a teacher of biology, earth sciences, ecology, consumer education, and business mathematics, and as supervisor and referee of girls' sports activities. The defendant Federico, the school principal, confronted her with information coming to him from the mother of a student that appellant was a homosexual. At a conference with Fredrico and, again at an appearance…