ROBERTS, D.J.: This cause having come before the Court for hearing on Plaintiff's application for preliminary injunction, consolidated with trial of the action on the merits pursuant to FED. R. CIV. PROC. 65(a)(2), and the Court having heard and considered all testimony, evidence, argument and authorities submitted by the parties, the Court now enters this Memorandum Opinion and Order, constituting its findings of fact and conclusions of law. Plaintiff, an unmarried pregnant employee of the Austin Independent School District (AISD) seeks injunctive and declaratory relief requiring Defendants to return her to the teaching position she held at Lyndon B. Johnson High School prior to her transfer, effective January 6, 1975, to a non-teaching position within the AISD. Plaintiff contends this action arises under the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. ¤ 1983, 42 U.S.C. ¤ 2000e-5(f)(1, 2), TEX. REV. CIV. STAT. ANN. art. 6252-16, ¤ 1(6, 7), and TEX. CONST. art. I, ¤ 3. Upon consideration of the facts presented and the law as it applies to those specific facts, the Court concludes that Plaintiff's requested relief [*2] must be denied.

I. Facts

Prior to her transfer Plaintiff was a high school teacher of special education classes assigned to teach at LBJ High School. These classes are composed of some 8 or 10 mentally retarded children. Plaintiff is in the third year of her probationary status with the AISD, and will be eligible for consideration for a "permanent" three-year contract with the AISD at the end of the current school year. Prior to the incidents complained of herein Plaintiff's competence as a teacher was unquestioned and her performance at least satisfactory.

In the fall of 1974 Plaintiff, a single female, learned that she was pregnant. The parties agree that Plaintiff intended to become pregnant and does not intend to marry. On November 15, 1974, Plaintiff notified the principal at LBJ, Ron Beauford, of her pregnancy. Mr. Beauford, then unaware that Plaintiff was not married, advised Plaintiff that she could continue teaching as long as her health allowed. When, however, Mr. Beauford was told that Plaintiff was not married he advised her that problems might arise, and suggested she notify Superintendent Davidson of her pregnancy and her unmarried status.

Ms. Wardlaw [*3] then wrote a letter to Dr. Davidson stating that, in view of the possible problems that might arise, she wished to advise him of her pregnancy before sharing the news with her students. Subsequently, Plaintiff and Dr. Davidson held two meetings. On December 16, 1974, Dr. Davidson informed Plaintiff that he was transferring her, effective January 6, 1975, to the non-teaching position of special education materials and media assistant at the Kealing facility. The transfer was confirmed by letter on December 18, 1974.

On January 3, 1975, Plaintiff filed suit in the 126th Judicial District Court for Travis County, Texas, alleging that Defendants had violated TEX. REV. CIV. STAT. ANN. art 6252-16 and TEX. CONST. art I, ¤ 3, by discriminating against her because of her sex. After the State Court denied Plaintiff's application for issuance of a temporary injunction, Plaintiff requested and that court ordered that Plaintiff's cause be dismissed without prejudice.

On January 15, 1975, Plaintiff filed a complaint against Superintendent Davidson with the Equal Employment Opportunity Commission, alleging sex discrimination. On January 30, 1975, the Board of Trustees of the Austin Independent [*4] School District held an open hearing at which Superintendent Davidson's decision to transfer Plaintiff was reviewed. All sides were allowed to present argument and evidence before the Board. At the conclusion of the hearing the Board voted by a 6-1 margin to affirm the Superintendent's decision. On February 7, 1975, this suit was filed.

All teachers in the AISD are employed under a contract of employment whereby they are "subject to assignment or reassignment by the Superintendent." The transfer of teachers and students within the AISD is a common occurrence. Such transfers can, and frequently do, result from a decision by school officials that the transfer is justified by the educational needs of the District, or by the individual circumstances of the teacher or student involved, or, as has recently become common, to achieve racial balance as required by court order. These transfers have, no doubt, frequently rendered the affected individual dissatisfied with the new assignment, but there can be no doubt that all teachers within the AISD understand their availability for reassignment to be a

The AISD has no general policy regarding unwed parents or unwed pregnant teachers. [*5] Superintendent Davidson testified clearly that his decision to transfer Ms. Wardlaw was based upon the particular facts here involved, and that this decision is not intended to establish a general policy or precedent that might apply to other unwed pregnant teachers or parents in other situations. Undisputed testimony revealed that, at least to the knowledge of school officials, the question of an unwed prospective parent teacher remaining in the classroom has never arisen before in the AISD.

II. Jurisdiction

Plaintiff alleges jurisdiction under 28 U.S.C. ¤ 1331(a), 1343(3, 4) and this Court's pendent jurisdiction to hear issues of State law. The causes of action alleged by Plaintiff derive from three bases: (1) 42 U.S.C. ¤ 1983 - action under color of State law depriving Plaintiff of rights secured by the Constitution and laws of the United States; (2) 42 U.S.C. ¤ 2000e-5 - employment discrimination because of sex; and (3) TEX. REV. CIV. STAT. ANN. art 6252-16 and TEX. CONST. art I, ¤ 3 - discrimination because of sex.

Defendants have filed motions to dismiss for want of personal and subject matter jurisdiction. Named Defendants are the AISD, Superintendent Davidson [*6] and the seven members of the Board of Trustees. Dr. Davidson and the Trustees are sued in their individual and official capacity.

The individual Defendants argue that they are immune from suit under 42 U.S.C. ¤ 1983 insofar as they are sued in their official capacity, and no claim is stated against them in their individual capacity, inasmuch as all acts alleged occurred while the Trustees were acting in their official capacity. Defendants' argument of official immunity is predicated upon the assumption that the Supreme Court's decision in City of Kenosha v. Bruno , 412 U.S. 507 (1973) that a city is not a "person" within the meaning of 42 U.S.C. ¤ 1983 necessarily means that officials of a school district are likewise not "persons" within the meaning of that statute. While a school district, under Texas law, is "of the nature of a municipality," Harkless v. Sweeny Independent School District , 427 F 2d 319, 321 (5th Cir. 1970), and not subject to suit under ¤ 1983, this does not leave Plaintiff without a remedy for alleged violations of constitutionally secured rights. The procedure of naming the superintendent and members of the Board of Trustees as Defendants, as Plaintiff [*7] has done here, is clearly proper. Ingraham v. Wright , 498 F.2d 248 (5th Cir. 1974). See also Wood v. Strickland , [*] U.S. [*] (Feb. 25, 1975).

The question of jurisdiction to hear Plaintiff's claim of sex discrimination in violation of 42 U.S.C. ¤ 2000e-5 and the above-referenced Texas statutory and constitutional provisions is, however, far less clear. Defendants contend that Drew v. Liberty Mutual Insurance Co. , 480 F.2d 69 (5th Cir. 1973), confers no power on this Court to grant injunctive relief because the Equal Employment Opportunity Commission has no present jurisdiction over Plaintiff's complaint. This contention is founded upon the decision in Nueces Hospital District v. Equal Employment Opportunity Commission , 371 F.Supp. 1126 (S.D. Tex. 1974) that TEX. REV. CIV. STAT. ANN. art 6252-16 is a deferral statute within the purview of 42 U.S.C. ¤ 2000e-5(c).

Defendants contend, further, that Plaintiff should not be allowed to urge in this court her claims arising under State law. Prior to initiation of this action Plaintiff brought suit in State court alleging violation of the above-referenced Texas anti-sex discrimination laws. Only after a decision by the [*8] State District Judge, reached after a full hearing, that Plaintiff's application for a temporary injunction should be denied because Plaintiff had failed to prove discrimination because of sex, did Plaintiff seek dismissal of her case without prejudice. While the doctrine of res judicata is not strictly applicable to the present situation, considerations of comity, equity and abstention would dictate that this Court refuse to exercise its pendent jurisdiction to overrule a decision as to the application of State law tentatively reached by the State court chosen by Plaintiff as her initial forum.

Inasmuch as the Court finds no proscribed discrimination because of sex to have been shown, however, we will pretermit consideration of these serious jurisdictional questions and assume jurisdiction exists to hear Plaintiff's claims arising under 42 U.S.C. ¤ 2000e-5, TEX. REV. CIV. STAT. ANN. art 6252-16 and TEX. CONST. art I, ¤ 3.

III. Sex Discrimination

Plaintiff contends that her transfer was the result of discrimination because of sex. Plaintiff presented, however, absolutely no evidence that she was treated any differently than would have been a single male teacher whose [*9] status as an expectant parent became known to school officials. Obviously, the physical fact that Plaintiff is a female assures that her pregnancy will become observable, while an unwed father has no such physical manifestation of his status. Recognizing that "While it is true that only women can become pregnant, it does not follow that every ... classification concerning pregnancy is a sex-based classification ...," Geduldig v. Aiello , 417 U.S. 484, 496 n.20 (1974), we feel that Plaintiff's contention of sex discrimination was put in proper perspective by Judge James R. Meyers of the 126th Judicial District Court for Travis County, in denying Plaintiff's application for temporary injunction:

"There was no evidence that Dr. Davidson treated male teachers who become parents of children out of wedlock differently from female teachers who become parents of children out of wedlock. Such evidence normally would not be availabel since, presumably, male teachers do not reveal their fatherhood of children out of wedlock, and female teachers, at sometime during their pregnancy, necessarily reveal their motherhood. An unmarried male teacher who advised the school administration that he [*10] was an unwed father and that he planned to share that information with his students would, I must presume, be treated the same as Ms. Wardlaw.

"The discrimination is in the knowledge available to Dr. Davidson not in his treatment of male and females. Eventually he will know when a female teacher is going to be a mother; he may never know when a male teacher is going to be a father. Discrimination in the availability of knowledge must be charged to nature, not to Dr. Davidson."

We find no proscribed discrimination against Plaintiff because of her sex.

IV. The Right to Privacy, to Procreate and Not to Marry

Plaintiff contends that her fundamental rights to privacy, to procreate and to decide whether to marry or not to marry, as protected by the First, Ninth and Fourteenth Amendments, have been infringed by her transfer. These rights are, indeed, among those liberties protected by the Due Process Clause, and Defendants have never questioned Ms. Wardlaw's right to become pregnant, to have her child, or to decline to marry. What Defendants have done is to reach an administrative decision regarding Plaintiff's status as a high school special education teacher. The right Plaintiff [*11] claims is, in reality, the right to teach the class of her choosing. Such a right is secured to Plaintiff neither by the Constitution nor by her teaching contract.

Evidence presented to the Court showed that Plaintiff's condition raised legitimate concern on the part of school officials regarding the impact of her presence on the educational process at LBJ High School generally, and particularly in her classroom. School officials feared that adverse public reaction to what might be considered, at least by large segments of society, to be Plaintiff's unconventional lifestyle was likely to cause disruption of the educational process at LBJ when and if Plaintiff's condition became public knowledge. Moreover, Plaintiff's position as a high school special education teacher brings into this case unique factors requiring careful consideration. At trial Defendants presented strong evidence that the special education students in Plaintiff's class possess characteristics which render them particularly needful of a learning environment free of the disruption, disturbance and tension likely to be engendered by any public controversy that might arise and has arisen concerning Plaintiff's [*12] status. Evidence further indicated that those students are mentally retarded children and might be particularly vulnerable to harm arising from any tension resulting from differences between their parents and their teacher regarding sexual attitudes and lifestyles.

Thus, we conclude that the decision of school officials was justified by legitimate educational concerns. Their decision in no way reflected upon the morality or propriety of Plaintiff's lifestyle, only upon the impact of her presence in the classroom on the educational system. Our task is not to review the wisdom of that decision, but only its conformance to the law of the land.

"The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and ¤ 1983 was not intended to be a vehicle for federal court correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees."

Wood v. Strickland , [*] U.S. [*] (Feb. 25, 1975) (slip op. at 18).

This Court is cognizant of such recent decisions as Andrews v. Drew Municipal Separate School [*13] District , 507 F.2d 611 (5th Cir. 1975), striking down a school district rule denying employment to any parent of an illegitimate child, and Faraca v. Clements , 506 F.2d 956 (5th Cir. 1975), finding a decision by the director of the Georgia Retardation Center that it would not be proper to have a racially mixed couple in the position of cottage administrator to be illegal. The present case, however, is factually distinguishable from those cases and those distinguishing facts dictate a conclusion that the decision to transfer Plaintiff was based upon legitimate educational concerns and a desire "to perpetuate public confidence in the educational" system. Duke v. North Texas State University , 469 F.2d 829, 839 (5th Cir. 1973). We conclude that Defendants' decision to transfer Plaintiff violated no right secured to her by the United States Constitution.

V. Conclusion

In concluding, we note that the decision reached by this Court is based upon the facts presented to us in this particular case. We make no effort to determine issues that might have arisen or might arise in a different factual context. The facts in this case show a good faith decision by school officials based [*14] upon legitimate educational concerns. No judgment of Plaintiff's morality or personal lifestyle is involved, and the action taken by school officials reflects no punitive motivation. Plaintiff has not been deprived of her livelihood, has not been permanently barred from teaching in the AISD, and has not been denied consideration for a permanent contract with the AISD based upon her job performance. Her pay and all emoluments and benefits of her contract derived from the same are in no wise impaired or diminished. It is accordingly

Ordered, Adjudged and Decreed that all relief sought by Plaintiff be, and hereby is, Denied. This Memorandum Opinion and Order shall constitute findings of fact and conclusions of law.