Appeal from judgment of the United States District Court for the Eastern District of New York, WEINSTEIN, J. Judgment reversed.
Feinberg and Danaher,*fn* Circuit Judges, and Dooling, District Judge.*fn**
DANAHER, Senior Circuit Judge:
Defendants have appealed from a judgment and order*fn1 entered by Honorable Jack B. Weinstein, District Judge. The judge explained the ultimate effect of his decision to be
that the plaintiff is as of this moment a certified teacher of bilingual early childhood classes in Spanish, and she may be re-employed as such a teacher in any school which will have her in the City of New York.
As Judge Weinstein had sought a clarification of Plaintiff's theory of the case, her counsel asserted that Plaintiff's rights of free speech had been violated in that she had spoken out against the manner in which the bilingual program had been planned and conducted, and that Plaintiff had been denied her license without due process of law.*fn2
After patient consideration of the background, the judge announced his findings which, simply stated, may enable us to glean pertinent perspective. We may paraphrase:
Plaintiff has failed to prove that she had been punished for the exercise of her constitutional rights of free speech in criticism of the program.
The Court is not convinced by a preponderance of the evidence that she was denied her position as a teacher under the Certificate of Competency.*fn3
There had been a complete failure of proof to show that funds were available so that payment for this teaching could continue under a Certificate of Competency under Title VII.
Accordingly, Plaintiff's cause of action based upon a claim of "violation of her rights to free speech" was denied.
We are satisfied that his ruling was clearly correct.
Turning to the remaining aspect of Plaintiff's claim, the judge next identified Plaintiff's certificate dated January 22, 1975, file No. 469113, as a conditional certificate "clearly issued subject to the plaintiff having received at least three semester hours on instructional methods on the pre-kindergarten and primary level." That certificate specified that Plaintiff was being licensed to serve as a Bilingual Teacher Early Childhood Classes (Spanish) "subject to the By-Laws of the Board of Education" and to the conditions, if any, under which the issuance of this license had been authorized. The license could be used for reference as a substitute until such time as the teacher might receive a regular appointment on the eligible list.
The Board of Examiners had outlined eligibility requirements for the position sought by the Plaintiff. Such an applicant was bound to have studied instructional methods and materials on the pre-kindergarten, kindergarten and primary level. Professional study of education must have been included or ...