539 F. 2d 656 - Cato v. Collins

Cecil Twillie appeals from a judgment of the District Court denying his claim for reinstatement as a teacher in Forrest City, Arkansas, Special School District No. 7 with all benefits and rights, including attorneys fees. Appellant, an intervenor in the principal action,1 asserted his claim in a "Motion for Further Relief". He bases his appeal from the denial of that motion on four grounds: (1) that he was deprived of due process by the failure of the school board to provide him with notice of and opportunity for a hearing prior to the board's decision not to renew his teaching contract; (2) that he was denied due process because the decision maker at the post-termination hearing was not impartial; (3) that he was deprived of due process by Ark.Stat.Ann. §§ 80-1245 and 80-1246, which he alleged were unconstitutional as applied; and (4) that the board's decision not to renew his contract violated his equal protection rights since that decision was based on racial motivations. Following careful examination of the record, we affirm the District Court.2

Appellant is a black teacher who was first employed by the school district during the 1962-63 school year and served as a teacher and athletic coach within the district until his dismissal at the conclusion of the 1972-73 school year. Prior to the 1970-71 school year, the district operated a dual system of schools. During this period, Twillie supported and participated in the civil rights movement in Forrest City and gave testimony at a trial involving a fellow teacher who had been dismissed because of participation in civil rights activities. His basic contention here is that his civil rights activities were the real reason for his dismissal rather than his insubordination, as the district contends. The facts surrounding this dispute are summarized below.

In the 1972-73 school year, appellant was the head basketball coach at Forrest City Junior High School. During the basketball season, Twillie asked one of the players on the team, who he felt was not fully participating in a practice session, to do some extra exercises. The player refused to do the exercises, left the practice session, and quit the team. When the player sought to be reinstated on the team, an understanding was reached between Twillie and the principal of the school that the player would be allowed to return to the basketball program, but with the express condition that he could not play in any of the remaining regular season games. Twillie instead played the student">student in two regular season games in order to determine if the student">student would be able to work with the team in the upcoming state tournament games.

When the principal learned that the student">student had been allowed to play contrary to the ground rules which the principal had established, he informed Twillie that the student">student was not to play in any of the state tournament games and was to be dismissed from the team. Twillie complied with this order, but submitted to the tournament officials a list of players which included the name of the dismissed student">student. At the tournament, the student">student did not play, but another student">student did play in the games under the name of the dismissed student">student. Playing a student">student under an assumed name violated the rules of the state activities association; and the board, upon discovering the violation, reported the incident to the association.

On March 16, 1973, Twillie was informed by letter that the board was considering action as a result of the basketball incidents. On April 9, 1973, the principal sent a letter to the district superintendent informing him of the incidents and stated that Twillie's actions were, in his opinion, acts of insubordination, but that he would not make any recommendations as to what actions, if any, the board should take. On April 26th, the principal again wrote a substantially similar letter to the superintendent. Then on May 14th, the board informed Twillie in executive session that his teaching contract was still under consideration and had not yet been renewed because of the incidents. Finally, on June 6th, Twillie received a letter dated June 5th notifying him that his contract for the 1973-74 school year would not be renewed. The letter included a statement giving the reasons for nonrenewal. The reasons for nonrenewal, as summarized by the District Court, were:

Insubordination and failure to follow directions and instructions as given by Principal as related to basketball program;

Failing to comply with policy requirement, as agreed and approved by the Principal, Assistant-to-Principal, and Mr. Twillie;

Playing a student">student under an assumed name in the State Tournament, that is under the name of a dismissed student">student; and

Recommendation by Principal of Forrest City Junior High School.3

Cato v. Collins, 394 F.Supp. 629, 638 (E.D.Ark.1975).

The decision not to renew the appellant's teaching contract was reached at a board meeting held in executive session on June 4, 1973, a meeting at which appellant was not present. Thereafter, in accordance with Arkansas law, appellant filed a request for a public hearing to reconsider the decision. The hearing was held on three dates, and the appellant was present at each hearing with counsel. The board produced various witnesses, but appellant did not testify or call any witnesses in his behalf. In August, 1973, the board again voted not to renew appellant's contract.

The District Court, after an evidentiary hearing, held that appellant had not been denied due process and that the nonrenewal of the contract was based upon appellant's insubordination and not upon racial motivations. Cato v. Collins, supra.

A state or school">public school teacher who is not formally tenured is entitled to procedural due process, and thus a pretermination hearing, only if the termination deprives the teacher of an interest in liberty or in property. Brouillette v. Board of Directors, 519 F.2d 126, 127 (8th Cir. 1975); Buhr v. Buffalo Public School District No. 38, 509 F.2d 1196, 1199 (8th Cir. 1974). See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). "Deprivation of an interest in liberty occurs where nonretention of the teacher imposes upon him a stigma or other disability foreclosing his future employment opportunities or resulting in significant damage to his standing and associations in the community." Buhr v. Buffalo Public School District No. 38, supra, 509 F.2d at 1199. We do not perceive any deprivation of an interest in liberty under the circumstances of this case.

Nonrenewal of a teaching contract alone does not constitute a deprivation of an interest in liberty. Board of Regents v. Roth, supra, 408 U.S. at 574 n.13, 92 S.Ct. 2701; Buhr v. Buffalo Public School District No. 38, supra, 509 F.2d at 1199; Calvin v. Rupp, 471 F.2d 1346, 1348 (8th Cir. 1973). If, however, the reasons for nonrenewal are announced publicly or are incorporated into a record made available to prospective employers, the reasons may affect a teacher's chances of securing another job. Buhr v. Buffalo Public School District No. 38, supra, 509 F.2d at 1199; Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir. 1973). Cf. Greenhill v. Bailey, 519 F.2d 5, 7-8 (8th Cir. 1975). In this case, the record indicates that the reasons for the nonrenewal of appellant's contract were not publicized by the board nor incorporated into any employment record. The board informed appellant of the reasons for nonrenewal in a confidential letter and did not publicly announce those reasons. It was only at appellant's request that public hearings were held, where the circumstances surrounding and the reasons for nonrenewal became public information. Such disclosure of the reasons for nonrenewal at the teacher's request cannot form the basis for an interest in liberty.4

Likewise, we do not perceive any deprivation of an interest in property in the circumstances of this case. Whether or not appellant's interest in continued employment constitutes a constitutionally protected property interest is to be determined under applicable state law. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. 2701; Buhr v. Buffalo Public School District No. 38, supra, 509 F.2d at 1203-04. Arkansas does not have a statute providing school">public school teachers with formal tenure. See Freeman v. Gould Special School District of Lincoln County, Arkansas, 405 F.2d 1153, 1158 (8th Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed.2d 93 (1969); Nethercutt v. Pulaski County Special School District, 251 Ark. 836, 841, 475 S.W.2d 517, 521 (1972); Johnson v. Wert, 225 Ark. 91, 95, 279 S.W.2d 274, 276 (1955). Instead, it has a "continuing contract" statutory system which provides for the automatic renewal of each teacher's annual contract absent affirmative action by the school board. See Ark.Stat.Ann. § 80-1304(b).5 The same title of the Arkansas statutes, however, provides for a special procedure to be followed in the event a board decides not to renew a contract. See Ark.Stat.Ann. §§ 80-1245 and 80-1246.6 These statutory provisions outlining the procedures for terminating a teacher's employment create "no expectation of continued reemployment and thus, no property interest requiring constitutional protection." Brouillette v. Board of Directors, supra, 519 F.2d at 127.7 See also Buhr v. Buffalo Public School District No. 38, supra, 509 F.2d at 1200; Scheelhaase v. Woodbury Central Community School District, 488 F.2d 237 (8th Cir. 1973), cert. denied, 417 U.S. 969, 94 S.Ct. 3173, 41 L.Ed.2d 1140 (1974). Neither do we find evidence in the record of any policies, practices, or "rules and understandings, promulgated and fostered by (the school) officials" that would justify a legitimate claim of entitlement to continued employment in appellant. Perry v. Sindermann, supra, 408 U.S. at 602, 92 S.Ct. at 2700.

Finding no deprivation of an interest in liberty or in property, we conclude that the appellant was not entitled to a due process pretermination hearing.

Appellant contends that he was deprived of due process at the post-termination hearings because the board had prejudged the facts of his case and therefore denied him an impartial decision maker. He argues that the board's prior contact with the case and its prior decision on June 4th to not renew his teaching contract prevented it from acting impartially at the hearings. We disagree.

In Swab v. Cedar Rapids Community School District, 494 F.2d 353, 354-55 (8th Cir. 1974), we rejected a similar contention and in so doing adopted the view of the Second Circuit in Simard v. Board of Education, 473 F.2d 988, 993 (2d Cir. 1973):

The constitutional rule sought here would require that decisions as to teacher competence be surrendered to a body less familiar with relevant considerations and not responsible under state and local law for making these decisions. Moreover, it is unrealistic to require a Connecticut town to provide more than one body to deal with various aspects of school administration. We do not believe that due process, varying as it does with differing factual contexts, requires so much in this case, absent a showing of actual, rather than potential, bias.

There being no claim or evidence of actual, rather than potential, bias, the claim is without merit under the circumstances of this case. See Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Barszcz v. Board of Trustees, 400 F.Supp. 675, 679 (N.D.Ill.1975). Cf. Wilson v. Lincoln Redevelopment Corp., 488 F.2d 339, 342-43 (8th Cir. 1973).

Appellant contends that the Arkansas statutes providing for a post-termination hearing are unconstitutional as applied in his case because (1) they did not provide for a pretermination hearing prior to deprivation of his property interest in continued employment, and (2) they did not provide for an impartial decision maker.

First, the District Court stated in its opinion that "(t)here has been no contention that the procedural requirements of the statute (Ark.Stats.Anno. §§ 80-1245, 80-1246) are unconstitutional." 394 F.Supp. at 639. The failure of appellant to assert such contentions in the District Court precludes their assertion here. See Harris v. Zurich Insurance Co., 527 F.2d 528, 532 (8th Cir. 1975); Kreis v. Mates Investment Fund, Inc., 473 F.2d 1308, 1313 (8th Cir. 1973); Ludwig v. Marion Laboratories, Inc., 465 F.2d 114, 117 (8th Cir. 1972).

Even were we to assume that the issue of the constitutionality of the statutes as applied was properly before this Court, no relief would be warranted. Our resolution of appellant's previous two claims with respect to a pretermination hearing and to the partiality of the board effectively disposes of any claim of unconstitutional action.

Appellant contends that the reasons given by the board for nonrenewal of his teaching contract insubordination and violation of the state activities association rules were pretextual and that the true reasons for nonrenewal were racial, stemming from his activities in the civil rights movement in Forrest City. The District Court rejected this contention and found that:

(T)he reasons for (appellant's) termination were insubordination and failure to follow directions and instructions, as given to him, by his Principal on important school policy. The testimony fails to disclose that his services were terminated as a result of his civil rights activities in 1968-69 or motivated in any way due to race, color or national origin.

394 F.Supp. at 635. We review this finding under the clearly erroneous standard. See Sheets v. Stanley Community School District No. 2, 532 F.2d 111, 113 (8th Cir. 1976); Adams v. Campbell County School District, 511 F.2d 1242, 1246 (10th Cir. 1975); Thomas v. Board of Education, 457 F.2d 1268, 1270 (8th Cir. 1972).

Nonrenewal of a teacher's contract upon a racially discriminatory basis is clearly impermissible. See Buhr v. Buffalo Public School District No. 38, supra, 509 F.2d at 1201; Freeman v. Gould Special School District of Lincoln County, Arkansas, supra, 405 F.2d at 1159. Appellant cites principally several comments allegedly made by school officials and the rejection of his applications for two different positions followed by the hiring of white persons in those positions as evidence of such racial motivation. While there is testimony in the record which might arguably, in the context of the particular circumstances of this school district, support an inference that the nonrenewal was based at least in part on racial motivations, there is substantial credible evidence that the nonrenewal was based on appellant's insubordination and violation of the association's rules. The District Court based its conclusions on this evidence, and "(r)easonable deference should be accorded the trial judge in his evaluation of the evidence, including any inferences to be drawn therefrom." Sheets v. Stanley Community School District No. 2, supra, 532 F.2d at 113.8

Upon a full review of the record, we conclude that the finding of the District Court that the nonrenewal of appellant's contract was based on his insubordination and violation of the association rules, and not on racial motivations, is not clearly erroneous.

The judgment of the District Court is accordingly affirmed.