State ot Wisconsin \ DEPARTMENT OF INDUSTRY, LABOR and HUMAN RELATIONS

MILWAUKEE STATE OFFICE BUILDINGB I B H. 6TH ST.

MILWAUKEE 33203

PLEASE REPLY TO:

EQUAL RIGHTS DIVISION

lohn I Phman ERD Caae #7605700EEOC TMK J61939

jnrj 11 1379

Complainant,

vs

Racine Unified School District #1Board of Education of RacineUnified School District #12230 Northwestern AvenueRacine, Wisconsin 53404

Respondent.

Our representative has completed an investigation of the above case and hasconcluded there is no probable^cause to believe that an act of discrimination,within the meaning of the Wisconsin Fair Employment Law, Wis. Stats., ss 111.31to 111.37, has been committed. A copy of the Initial Determination is enclosed.

When an INITIAL DETERMINATION of NO PROBABLE CAUSE is issued, the Complainantmay file an appeal with the Department, within 30 days from the date of thisletter, requesting a hearing. That request must be in writing and state speci-fically the grounds upon which it is based. Such a request should be forwardedto the Equal Rights Division, 819 North Sixth Street, Milwaukee, Wisconsin, 53203.

If no request is filed, the Complainant shall be deemed to have waived the rightto hearing, and the Initial Determination shall be deemed the decision of theDepartment. The Department will then automatically close this case withoutfurther notice to the parties.

Very truly yours,

Robert M. HuppertzRegional DirectorduEnc.cc: Complainant

RespondentMs, Priscilia Ruth MacDougall, Staff Counsel

DILHl-iiD-439 82/75

wf

STATE OF WISCONSINDEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS

EQUAL RIGHTS DIVISION

John Lehman

Complainant

vs. • INITIAL DETERMINATIONERD Case #7605700

Racine Unified School District #1 EEOC #61939Board of Education of RacineUnified School District #12230 Northwestern AvenueRacine, Wisconsin 53404

Respondent

I. Jhe Charge:t -±—-• -"' "

In a COMPLAINT filed on May 24, 1976 with the Equal Rights Division ofthe Department of Industry, Labor and Human Relations, the Complainantalleges that he was discriminated against by the Respondent because ofcreed/Lutheran Protestant Christian in regard to rehire in violationof Sections 111.31-111.37 of the Wisconsin Statutes.

II. Position of the Complainant:

The Complainant said his charge of religious discrimination is basedupon the Respondent's failure to rehire him for a teaching positionfollowing the events stemming from his attempt to obtain conscientiousobjection status, and his refusal to submit to induction into militaryservice.

,-f-III. Position of the Respondent:

The Respondent denies discriminating against the Complainant.

IV. Issues:

1. Was the Complainant not rehired due to his creed?

V. Persons Interviewed:

1. John Lehman, Complainant.

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2. W. Thatcher Peterson, Coordinator of Employee Services, UnifiedSchool District #1, Office of Superintendent, 2230 NorthwesternAvenue, Racine, Wisconsin, 53404.

3. Priscilia Ruth MacDougall, Staff Counsel, Wisconsin EducationAssociation Council, 101 West Beltline Hwy, P.O. Box 8003, Madison,Wisconsin, 53708.

4. -Jim Ennis, Executive Director, Local REA, (1-414) 632-6181.

5. Bob Abies, President, Local REA, (1-414) 632-6181.

VI. Exhibits:

1. Investigator's Log.

2. Correspondence from W. Thatcher Peterson, June 21, 1976.

3. Correspondence from Wayne Schwartzman, July 22,^1976.

4. Correspondence from Complainant.

5. Mrs. Finney's letter to Complainant, July 18, 1977.

6. Mrs. Listenbee's letter to Complainant, December 23, 1977.

7. Correspondence from Equal Rights Division to Complainant, August 25, 1978.

8. Mrs. Listenbee's letter to Complainant, November 9, 1978.

9. Mrs. Listenbee's letters to Complainant, September 29, 1978 andNovember 10, 1978.

10. Mrs. Listenbee's letter to Complainant, November 24, 1978.

11. -Copy of Dismissal notice, January 3, 1979.

12. Correspondence from Priscilia Ruth MacDougall, January 11, 1979.

13. Correspondence from Priscilia Ruth MacDougall, March 22, 1979.

14. Mr. Johnny Kimble's letter to Complainant, April 4, 1979.*

VII. Investigator's Findings: *

The Respondent denies the allegation of creed discrimination.

It is now initially determined that:

1. The Respondent, Racine Unified School District #1, is an employerwithin the meaning of Sections 111.31-111.37 of the Wisconsin Statutes.

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2. The Complainant taught as a history instructor for the Respondentfrom January 1971 to August 1972.

3. In December 1967 the Complainant applied for Conscientious Objectorstatus based upon his religious belief's and opposition to partic-ipation in the Vietnam war. The Complainant's application wasdenied and he was ordered to report for induction on August 5, 1968.Complainant refused and was sentenced on July 1, 1971 for two years.The Complainant was confined for three months and the remainder ofhis time was spent doing hospital work. On August 5, 1974, theComplainant was granted an early discharge and on July 10, 1975,President Ford granted him a" full pardon.

4. The Complainant said he has continuously applied for a teachingposition with the Respondent since 1973 and has been refused employment.

5. The Complainant stated that his creed is Lutheran Protestant Christian.

6. The Equal Rights Officer asked upon what basis the Complainant wasalleging that it was because of his creed that he was denied the job.

7. According to the Complainant, Rev. Stanton, a former school boardmember, opposed the Respondent's decision not to rehire him, thereason for the decision being ttie controversy surrounding his refusalto submit induction because of his religious creed. The Complainantsaid his charge of religious discrimination is based upon theRespondent's failure to rehire him fdr a teaching position followingthe events stemming from his attempt to obtain conscientious objectionstatus, and his refusal to submit to induction into military service.

8. Complainant said the Respondent was made aware of his creed throughthe publicity his conscientious objection case received in articlespublished in the Milwaukee Journal and a school board meeting inAugust 1971 where matters were discussed relating to the consequencesof his refusal to report for induction.

• 9. The Complainant said there were openings when he applied for a teach-ing position in 1973, 1974, 1975 and 1976.

10. The Equal Rights Officer finds that the Equal Rights Division has nojurisdiction over the Complainant's charge since it appears he refusedto report for induction in 1968 due to his pol.itical beliefs and notprimarily because of his religious beliefs. The Wisconsin Fair „Employment Act defines creed as a system of religious beliefs and ,not a system of political philosophy or beliefs.

CONCLUSION

There is no probable cause to believe the Respondent discriminated against theComplainant because of creed in violation of Wisconsin Statutes 111.31-111.37.

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. •"

Dated at Milwaukee, Wisconsin JUJ1 -1 L 1979

Dorothy ListenbeeEqual Rights Officer

DLrdu

cc: ComplainantRespondentMs. Priscilia Ruth MacDougall,Staff Counsel

V

f

HAROLD A. KONNAK

CHARLES M.CONSTANTINE

THOMAS C. KROHN

KONNAK, CONSTANTIKE & KROHNL A. VV^ Y E JR SSTREET '

RACINE , WISCONSIN 534O3

August 9, 1972

I*-

fS*F AU Q 1 1 1972AREA CODE *l-t

TELEPHONE 634-7136

Mr. Thatcher PetersonUnified School District No. 12230 Northwestern AvenueRacine, Wisconsin 53404

Re: John Warren Lehman

/Dear Mr. Peterson:

I enclose a copy of the decision renderedby the United States Court of Appeals for theSeventh Circuit on August 7, 1972, in the case ofJohn Warren Lehman.

Very truly yours,

, CCharles M. Constantine

CMC:mgvEnclosurecc: Mr. John W. Lehman

\

tfje

IniteSi l^tatetf Ccstirt of itfje g>ebentf) Circuit

SEPTEMBER TEEM, 1971—- APRIL SESSION, 1972

No. 71-1712UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHN WABBENDefendant-Appellant.

A p p e a l from theUnited States Dis-trict Court for theEastern District of

• Wisconsin.No. 70-CB-122

MYBON L. GORDON,Judge.

ARGUED APRIL 4, 1972 — DECIDED AUGUST 7, 1972

. Before CUMMIKGS and STEVEKS, Circuit Judges, andCAMPBELL*, District Judge.

PER CURIAM. After. a trial to the court, appellant -wasconvicted of refusing to submit to induction in violationof 50 U.S.C..APP. § 462. His appeal challenges the dis-trict court's conclusion that his conscientious objection toparticipation in war was selective rather than all-inclusive.We have decided that the 'conviction, must bo affirmed..

Appellant contends (1) that the record should be viewedliberally in his favor in determining whether there is a'basis in fact for the denial of a I-O classification; (2) thathe was conscientiously opposed to war "in any form".;

•Senior District'Judge William J. Campbell of the Northern Districtof Illinois is sitting by designation.

71-1712 2

and (3) that his I-A classification is invalid because hislocal board failed to state any reason for denial of a 1-0.classification.

Appellant's first argument draws support from twosources. First, the record unambignousjy demonstratesthe sincerity and integrity of appellant. 'The governmentdoes not question his conscientious objection to the war inVietnam, the sincere and religious basis for his beliefs,or indeed, any of his factual averments either in testi-mony or in his brief on appeal. There is indeed a strongtemptation to construe the record liberally in his favor.Second, we have previously stated "that the local Boardsshould liberally construe all registrants' communications.. . ." muted'States v. Hasmuk, 419 P. 2d 929, 930 (1970).

The rule applicable to our reviewing function is quitethe opposite of that for which appellant contends. In allcases the burden is upon the appellant to demonstrate thatthe trial court has erred. In appeals from criminal con-victions, Qlasser v. United States, 315 U.S. CO, 80, has beencited literally hundreds of times for the proposition thatit is our duty to construe the evidence in the government'sfavor. We must therefore reject appellant's first con-tention.

The second contention focuses on the distinction betweena registrant's present opposition to war in any form, not-withstanding an acknowledgment that his present viewsmight change in the future, see United States v.^Owen,415 F.2d 383, 390 (8th Cir. 1969), cited in Gillette v. UnitedStates, 401 TT.S. 437, 448, and a present opposition to par-ticular conflicts rather than all war. The district courtfocused on this precise"issue and concluded that appel-lant's opposition was selective. This conclusion has sub-stantial support in the record.

In May, 1965, when appellant completed his Classifica-tion Questionnaire, he stated "does not apply" in responseto the questions appearing in "Series VIII—ConscientiousObjector."

In January of 1968, after receiving notice that his classi-fication had been changed to -I-A,. appellant applied forexemption as a conscientious objector on SSS Form 150,

3 71-1712

supplementing the form with n six-page typewritten state-ment. Form 150 contains a printed statement reading,in part', as follows: "I am, by reason of my religioustraining and belief, conscientiously opposed to participa-tion in war in any form. . . ." Before defendant signedthe form he substituted for the words "\var in any form"the words "the war presently being waged in Vietnam."

In his supplemental statement he explained the substi-tution on the basis of his conviction that his views weresimilar, if not identical, to those held by approved con-scientious objectors, and that he was convinced he "should'submit as honest a statement of my beliefs as possibleand see if there is any way for you to g/ant me such astatus." He also stated, "... I can say that I generally'believe in' the use .of force for'defensive or self-'preserva-tional purposes only."

Appellant requested and was granted a personal appear-ance before the local board. At that appearance he madestatements to the board which were incorporated in awritten summary which he stated was reasonably accurate.According to that summarj7, appellant said:

"It is very difficult to decide if I am opposed to allwar.. I crossed out the statement on the questionnaire"concerning being opposed to all wars. However, thewar facing America today is one in which I can'tparticipate. I cannot say for sure that there aren'tsome wars where perhaps I would take up a gun.

* * *"I said I'm not sure. I object to all war, but I .realize that there are calls to duty that are legitimate. jI just don't think that this.one is legitimate."

In a letter written to the board on the following day,appellant stated that he believed his submission, if prop-erly interpreted:

". . . would show that I am as opposed to participa-tion in all wars on the basis of religious training andbelief as any conscientious objector but I have no way

. in my power—granting the way I make decisions—tosay with a decent amount of. certainty that I do,indeed, have this objection and will continue to havethis objection until the time when I am too old andfeeble to bear arms.

• 71-1712 4

The major stumbling block in our discussions was'all wars.' The members of the board didn't seem tounderstand that my objection to the war in Vietnamis a deep-seated one and extends to the type of warbeing fought in Vietnam and the type of attitudesand foreign policy that helps our leaders fall intosuch predicaments with the population of this countrystumbling, senri-willingly, along behind. Most likelymy objection to participation in wars of this type willcontinue throughout the years I remain draft-eligible.This is the only type of involvement that we will beengaged in, most probably. This is the cancer that itmay take the United States twenty to' forty to one-hundred years to cure herself of.

"So, for all practical purposes, I will oppose and re-,fuse to fight in all wars that I am ever asked to fight

• in ... probably. But it would be a lie for me toeven suggest that I know in all certainty that 'somefreak, non-offensive skirmish will not pop ,up in mylifetime. I could not decide upon something like thatuntil the time arose."

Before receiving appellant's letter, the local board de-cided not to change his classification from I-A to 1-0. Theboard treated -his letter as an appeal from that classifica-tion and subsequently advised him that his appeal hadbeen considered but that his classification would not bereopened.

Appellant made further submissions to the board andultimately the appeal board for the Eastern District ofWisconsin affirmed his classification.

The record contains a summary of an interview withappellant by F.B.I, agents who did say that appellant "isconscientiously opposed to war and opposed to the presentwar in .Vietnam." Also, at his trial, appellant testified•that no war of which he had any knowledge had ever beenfought anywhere in which he would have been willing toparticipate. However, he was unwilling to testify that hewould not participate in_ a war if the United States itselfwere attacked by a foreign power.

5 71-1712

Reading the record as a whole, as appellant argues,there is support for his position that he is sincerelyopposed to all forms of war and is merely seeking honestlyto avoid giving untruthful answers to questions abouthypothetical possibilities that he does not foresee. On theother hand, it is also quite clear that there is ample evi-dence in the record to support the finding -which the dis-trict court made. We therefore conclude that appellant'ssecond contention—that the district court was required tofind that he was conscientiously opposed to war "in anyform"—must be rejected.

Finally, appellant's reliance on United States v. Lemmens,430 F.2d 619 (7th Cir. 1970), does not require reversal.Under the rule of that case the failure of a local boardto state reasons for rejecting a claim of a conscientiousobjector does not invalidate a classification unless "theregistrant described a belief which on its face fulfilled thelegal requirements." Id. at 624. Appellant's alteration ofthe Form 150 by substituting the phrase "the war pres-ently being waged in Vietnam" for the words "war in anyform" prevented his application from 'fulfilling, on itsface, the legal requirements. Gillette v. United States,401 U.S. 437.

The judgment is affirmed.

A true Copy:

Teste:

Clerk of the United States Court ofAppeals for the Seventh Circuit.

USCA 4015—1116 Scheffer Press,. Inc., Chicago, Illinois—S-7-72—200

~T

10 January 1972

C. Richard Nelson, Superintendent of Schoola

V. Thatohar Petereon, Coordinator of Employe* ServioeB

SUBJECTi ! John Lehman

I checked today with Charlee Constant!ne about the status of Mr.Lehman*• appeal to the Seventh Circuit. He said that Mr. Lehman**brief had been completed, but in early December the governmentaaked for in extension of the tixe by vhloh it* brief aurt be in.The time was extended until January 17, 1972.

Mr* Constantino ha* no idea of when the cane will oome up forargument. The work of the Seventh Circuit Court of Appeal! ha*iaoreaeed aince one of the maaberB ha* temporarily withdrawn from•ervioe owing to the hot breath of aoandal. I aaked Mr* Oonrtantineto keep ae infor&ed of progreaa of the appeal.

WTPikka

April 29, 1971

Mr. William C. KahlState SuperintendentState Department of Public Instruction126 Langdon StreetMadison, Wisconsin 53702

Dear Mr. Kahl)

I am writtog to inform you that one of our high achool tcachera,John Lehman, has been convicted of a felony in the U.S. DistrictCourt. This conviction traa baaed on hie refusal to report forinduction in the armed forces of the United States in 1968, Hisrefuial traa bated on hie stated position aa a conscientious ob-jector toward the present war. Be did not, however, indicatethat he opposed all ware, aa In good faith he felt he could nottruthfully cay this.

The Supresae Court of the United States has presently decided thatperioni can not be aelective conscientious objectors. Mr. Lehmanappears to fall within this category, A pre-sentence investigationit presently taking place and he will be sentenced in about fourweeks. Whether this sentence contains probation or a prison term,it will be appealed.

At this time we feel Mr. Lehman is certainly qualified to teachchildren and we would feel nhere ia no reason why he should losehie certification. I am informing you of this for your informationonly and vill maintain contact with you aa the situation progresses,

Sincerely yours,

Riehard NelaonSuperintendent of Schoola

RNtrak

eer Personnel

03171972

August 14, 1972

Mr. Delbert L. FritchenUnified School District No. 12230 Northwestern AvenueRacine, Wisconsin 53404

Dear Mr. Fritchen:

On August 7th the U. S0 Federal Court of Appealsfound me guilty of induction refusal in 1968.

As you know, the school board had asked that Iresign if I was found guilty on appeal. Therefore, Ioffer this letter of resignation effective.this date.

PRESIDENTIAL CLEMENCY BOARDTHE WHITE HOUSE

WASHINGTON, D.C. 20500

July 18, 1975

T oilman

Ref: 278-LJW-C

Dear Mr. Lehman:

President Ford has accepted the recommendation ofthe Presidential Clemency Board and has signed amaster warrant which granted you a full, free andunconditional Pardon pursuant to Article II, Section2, of the Constitution of the United States. TheAttorney General will soon send you your individualPardon.

The Pardon will restore all federal civil rightswhich you lost upon your criminal conviction,including the right to run for federal office. Youwill also find your Pardon helpful in restoringcertain state civil rights, such as your right tovote and to obtain a license to work in certainoccupations from which you are now barred by statelaw.

If you are currently under probation or parolesupervision for a Selective Service violation forwhich you have received clemency, you should promptlybring this letter to the attention of your ProbationOffice. If your Probation Officer has any questions,have him contact the Presidential Clemency Board.

If you have further questions about your Pardon,please ask an attorney or write or call the PresidentialClemency Board. The telephone number is (202)634-4820 or 634-4823.

Congratulations and best wishes for the future.

Sincerely,

Charles E. GoodellChairman

CEGrem

February 5, 1976

Mr. Delbert Fritchen cT-Personnel DirectorUnified School District #1 ^2230 Northwestern Avenue —\Racine, Wisconsin 53404 CH

T.T

Dear Mr. Fritchen:

I am writing to re-apply for a secondary social studies, economicsor history teaching position and to let you know that I am stillvery much interested in employment at Unified.

During our last discussion in September and on numerous occasionsdating back to May, 1973 I have asked to be re-considered for full-time or part-time employment. My applications have been unsuccessfuland I don't understand it. Could you please answer some questionsto help me understand why you have failed to act positively onmy re-application?

First, I would be most grateful if you could please explain theprocedure involved once you receive an application. Are eligibleapplicants put on a specific list? Is this document referred outto various schools? Or is everything centralized in the personneldirector's office? Is the procedure different for full and forpart-time teaching applicants?

Secondly, I would very much appreciate knowing about the personnelcommittee meeting which took place, I believe, in mid-October, 1975.Rev. Howard Stanton told me a week or so after the meeting that myname was discussed. He said that a vote was taken on whether or notI could be hired and by a 2-1 margin it was decided that I was not toto be considered for employment. Is this correct? It is not clear to mefrom his explanation just what information was presented to thiscommittee that would convince two school board members to vote againstme. What material was presented to this committee? And, for whatreason or reasons did the vote go against me?

May I have an appointment to appear in person before this committeeso that I might answer any objections they might have?

Finally, I would very much appreciate a listing of the openingswhich existed at Unified since May, 1973 for which I was qualified andfor which someone was hired.

You would be most kind to respond in writing to these queries.Thank you so much.

February 17, 1976

John W. Lehman

Dear Holm:

I have received your recent correspondence questioningre-employment possibilities in the district, and requestingadditional information regarding teachers hired in SocialStudies positions since May of 1973.

1 think it would be easier to discuss the requests you havemade in person, and would ask that you call my office sothat we can establish a convenient time to meat.

I look forward to hearing from you soon.

Sincerely,

Delbert L. FritchenAssistant Superintendent,Staff Personnel Services

DLFieh

\

I$WL

State of Wisconsin \ Department of Industry, Labor and Human Relations

Please Reply to:

John Lehman

omplainant

vs.

Racine Unified SchoolDistrict #1Board of Education of RacineUnified School District #12230 Northwestern AvenueRacine, Wisconsin i>3404

Respondent

DISMISSALERD Case #7605700EEOC TMK #6-1939

EQUAL RIGHTS DIVISIONMilwaukee State Office Building819 N. 6th StreetMilwaukee, Wisconsin 53203

Date of Complaint

Basis of Discrimination

May 24, 1976

creed

A complaint alleging discrimination was filed with the Equal RightsDivision of the Department of Industry, Labor and Human Relationson the above date.

Subsequent attempts to reach the Complainant, by 1st class and certifiedmall, as well as by telephone, have been unsuccessful; and 20 dayshaving passed.

Therefore, the Department of Industry, Labor and Human Relations, havingbeen fully Informed and having no objections, hereby

ORDERS

Said complaint be, and hereby is, dismissed without prejudice.

Dated at Milwaukee, Wisconsin JAU 3

PrinceEqual Rights Officer

FP:dz

cc: John LehmanRacine Unified School DistrictEEOC

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

342 NORTH WATER STREETMILWAUKEE, WISCONSIN 53202

TELEPHONE: (414) 291-1111

i

IN REPLY REFER TO:

Charge No: 055761939706 Nos 7605700

LEHMAN, John W..„ vs

RACINE UNIFIED SCHOOLDISTRICT #1Racine, Wisconsin

Racine Unified School District #12230 Northwestern AvenueRacine, Wisconsin 53404

Gentlemen:

This will advise you that the above-mentioned Charge Numberfor which you received our EEOC Form 131, "NOTICE OF CHARGE OFEMPLOYMENT DISCRIMINATION", has been administratively closedwithout prejudice by this office.

This case may be reactivated at any time within the next six(6) months. Respondent is therefore obligated by Section 1602.14of the Commission's Regulations to preserve the relevant records.

On behalf of the Commission:

KATHLEEN BLUNTDistrict Director

KB:WNH:CC:SJR:rw