545 F. 2d 527 - Stapp v. Avoyelles Parish School Board

This case presents anew the frequently litigated question of a probationary employee's right to due process protection prior to dismissal. In this instance, the District Court ruled that whether the hearing it had previously ordered was sufficient under the requirements of the Due Process Clause should be presented first in the Louisiana Court System.1 We vacate and remand so that the District Court may evaluate the due process protections under the procedures announced in Ferguson v. Thomas, 5 Cir., 1970, 430 F.2d 852, and its progeny.

On June 14, 1974, Roy N. Stapp (Principal) was informed by the Avoyelles Parish School Board (School Board) that his contract as the probationary, non-tenured principal2 of Bunkie High School in Avoyelles Parish, Louisiana would not be renewed for a third year, the 1974-75 academic year. Earlier during his second year as principal of Bunkie High, Principal received a letter of intent from the Avoyelles Parish School Superintendent (Superintendent). This letter stated in part

"I am pleased to advise that your work as principal has been satisfactory and I shall recommend to the Avoyelles Parish School Board that you be re-employed for the 1974-75 school session."

Also included in the March 18, 1974 letter was a specific indication that if Principal demonstrated his intention to work for the Avoyelles Parish School System for the 1974-75 term, the Parish would consider him under contract and would only release him from his obligation for "urgent and unforeseeable circumstances." Principal appropriately conveyed his intention to continue as principal for the upcoming school year.3

After receipt of the letter of intent, a struggle over replacement of the Bunkie High School football coach (Coach) reached its critical phase. Coach was fired by School Board without Principal's recommendation. When a local newspaper printed an article incorrectly listing Principal as one of those who had attended a meeting and supported dismissal of Coach, Principal contacted the paper, denied having attended such a meeting, and requested a retraction.

Approximately one month later on May 21, 1974, Principal was called to School Board President's office and asked to resign in the presence of Superintendent, a Supervisor of Curriculum and Instruction, and a School Board member. Because his requested retraction from the local newspaper was allegedly ". . . failure to keep his mouth shut and follow whatever direction he (the School Board President) choose", Principal contends that he was asked to resign and was later notified that he was discharged. Consequently, one of the reasons given by Principal as the basis of his dismissal entails a fundamental right protected by the First Amendment, free speech.4 If this alleged reason should prove to be the basis of Principal's dismissal, the outcome of this case is clear. Such basic Constitutional rights are not shed as a pre-requisite to continuation of a school related career. Tinker v. Des Moines Independent Community School District, 1968, 393 U.S. 503, 506, 507-14, 89 S.Ct. 733, 21 L.Ed.2d 731; Pickering v. Board of Regents, 1968, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811.5

Undeterred by his March 18, 1974 letter of intent, Superintendent prepared a written recommendation to School Board setting forth reasons Principal's contract should not be renewed6 and for Principal's discharge as an employee of the School System. At a regularly scheduled School Board meeting on June 18, 1974, after only an assurance by Superintendent that the charges in his recommendation were or could be substantiated, the School Board adopted his recommendation and discharged Principal. It is important to note that although Principal was present at this meeting, he was never notified if, when, or where a hearing on his dismissal would occur.

On the same day Principal was discharged by School Board, he filed suit in the United States District Court for the Western District of Louisiana seeking declaratory, injunctive and other "appropriate equitable relief" against School Board, each member of the school board individually in their private and public capacities, and Superintendent in both his official and individual capacities. The District Court held an evidentiary hearing on the preliminary injunction relief and issued an order and ruling on August 4, 1974, which concluded that it lacked subject matter jurisdiction over the school board and its members in their official capacity under 28 U.S.C. § 1343 because they are not "persons" within the ambit of 42 U.S.C. § 1983.7 It did find jurisdiction under the federal question provision of 28 U.S.C. § 1331 because of the alleged violation of Fourteenth Amendment8 and the necessary jurisdictional amount.

The District Court then concluded that as a probationary employee Principal normally would not be entitled to a full due process hearing under L.S.A.-R.S. 17:442. According to the District Court in this instance, however, the March 18, 1974 letter of intent created more than a unilateral expectation of re-employment. It created a property interest in re-employment which entitled Principal to a hearing under the principles enunciated in Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, and Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. Determining that the June 18 School Board meeting failed to meet the minimal due process requirements, the District Court directed School Board within a reasonable time to hold such a hearing under the standards enunciated in Ferguson v. Thomas, 5 Cir., 1970, 430 F.2d 852 and its progeny along with Principal's reinstatement with back pay as principal of Bunkie High School in the interim.

In accordance with this mandate, School Board conducted a hearing and again discharged Principal. Because of alleged procedural and due process shortcomings, Principal requested the District Court to "adjourn" the hearing held by School Board and appoint a special master to conduct a proper hearing. This request was denied by a ruling issued on September 23, 1974.9 Principal then moved for a permanent injunction and declaratory relief alleging that his discharge violated his right to free speech and that he was not afforded adequate due process protection by the school board hearing. Without examination of any record of the hearing held by School Board and without conducting a hearing on Principal's motion, the District Court denied Principal's motion with a succinct and confusing "Plaintiff's Motion for a permanent injunction and for declaratory relief is hereby denied for the reasons set forth in this Court's ruling and order of August 1, 1974."10 From this ruling Principal appeals.

Prior to any consideration of the sufficiency or necessity of procedural due process protections, Principal must demonstrate deprivation of an interest in "life, liberty, or property" within the protections of the Due Process Clause. Under the principles of the existing case law for a probationary, non-tenured employee with at most a unilateral expectation of continued employment, no question remains about the lack of any property interest in his or her continued employment which is shielded by procedural due process requirements. Bishop v. Wood, 1976, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684; Sampson v. Murray, 1974, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166; Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Burnley v. Thompson, 5 Cir., 1975, 524 F.2d 1233, 1240; Roane v. Callisburg Independent School District, 5 Cir., 1975, 511 F.2d 633, 637-39. On the basis of the March 18 letter of intent which specified that upon Principal's communication of willingness to continue on as principal the School System would consider Principal under contract and would release him only for "urgent and unforeseeable circumstances", we agree with the District Court's finding that Principal had a definable property interest in his re-employment.11 The offer of continued employment in the letter coupled with the admitted reliance by School Board on Principal's affirmative response12 and the expressed binding nature of such an acceptance falls into the class of property interests protected by the due process procedural requirements.13 See Roth, supra at 576-77, 92 S.Ct. at 2708-09, 33 L.Ed.2d at 560-61; Perry, supra at 601, 92 S.Ct. at 2699, 33 L.Ed.2d at 580; Zimmerer v. Spencer, 5 Cir., 1973, 485 F.2d 176, 177-78; Sims v. Fox, 5 Cir., 1975, 505 F.2d 857, 860-62.

Equally important in this case is recognition of the principle that except in singular instances a governmental agency may not discharge even a non-tenured employee because of his or her exercise of First Amendment rights. Perry, supra at 597, 92 S.Ct. at 2697, 33 L.Ed.2d at 577; Roane, supra at 640; Kaprelian v. Texas Woman's University, 5 Cir., 1975, 509 F.2d 133, 139. Realizing that any time freedom of speech arises as a significant basis of a cause of action a Court must proceed cautiously, we tread gently past this issue because of the insufficient procedures followed by the District Court and the state of the record before us on appeal.14

We recognize the emphasis by the dissent on the pre-Roth and Sindermann Louisiana cases15 in which a teacher seeks through a direct suit on the alleged contract to be either reinstated or to receive a monetary award. This opinion does not deal with whether Principal is entitled to recovery or reinstatement on a contract claim. Rather, the issue is whether Principal had a non-subjective expectancy of continued employment. Once this threshold is created, both Roth and Sindermann instruct that minimal due process must be afforded Principal. This is the distinctive essence of our opinion. A non-subjective expectancy has been created.16 We do not intimate nor consider whether Principal is entitled to win on any contract claim. The letter of intent from Superintendent to Principal created more than a subjective expectancy. It definitively indicated that upon Principal's conveyance of a formal acceptance in the proper manner, Principal would be considered under contract and released from his obligation only for "urgent and unforseeable circumstances."17

Two factors are certain. Principal possessed a property right necessitating a hearing and the District Court ordered School Board to afford Principal such a hearing. Coupled with this factor is this Circuit's determination that a preferred review procedure of such school board hearings be followed by the District Court. See Robison, supra at 254-56; Thompson v. Madison County Board of Education, 5 Cir., 1973, 476 F.2d 676, 679-80 (Clark, J., concurring specially); Fluker v. Alabama State Board of Education, 5 Cir., 1971, 441 F.2d 201, 208 n. 15; Ferguson, supra at 857-59.

Ordinarily the District Court is not expected to conduct a de novo hearing. Rather, the first inquiry is to examine the record of a school board's hearing to ascertain whether the procedures followed violated federal rights. In other words, did School Board conduct a hearing for Principal adequate by the procedural due process requirements of the Fourteenth Amendment? If so, then the record should be viewed to determine whether substantial evidence before the agency supports its action. Robison, supra ; Madison County Board of Education, supra ; Ferguson, supra.

Because a First Amendment claim is involved, the substantiality of evidence supporting School Board's discharge should be further classified to determine whether the District Court must decide the First Amendment claim and hold an evidentiary hearing on whether Principal's exercise of his speech rights was a significant basis for his discharge. In reviewing School Board's record, the reasons given for Principal's discharge may prove to be clearly insubstantial, substantial and sufficient, or substantial but insufficient. If the reasons are substantial and sufficient, the District Court need not consider or receive evidence on the First Amendment claim.18 If clearly insubstantial, the District Court must consider and receive evidence on the First Amendment claim. Likewise, the Court must hear evidence on the First Amendment allegation for substantial but insufficient reasons.19 Robison, supra at 255; Ferguson, supra at 858-59; see Kaprelian, supra at 139; Madison County Board of Education, supra at 679-80.

From the foregoing it is apparent that the District Court's initial duty is to examine the record of School Board's hearing held pursuant to its August 4, 1974 ruling. The record shows that the District Court issued its September 23, 1974 and its last ruling denying a permanent injunction request without ever examining the record of School Board's hearing for Principal. For this reason, this record is absent any facts regarding what transpired during that hearing. The District Court's ruling is vacated and this case is remanded for reconsideration in light of the principles discussed in this opinion.

VACATED AND REMANDED.

The majority of the panel holds, if I rightly read its opinion, that the letter of intent from the Superintendent of the School Board to a principal created a property interest in re-employment of which he could not be divested without a Due Process hearing. This, I think, is wrong.

The majority agrees with the district court's conclusion that the:

"letter of intent created more than a unilateral expectation of re-employment. It created a property interest in re-employment which entitled Principal to a hearing under the principles enunciated in Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, and Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548."

In Perry it was recognized that a teacher may, despite the lack of tenure or a formal contract, have a property interest in continued employment. This property interest could take the form of an implied contract arising from rules and understandings with the employer or from the circumstances and facts of the service. In Perry, such an implied contractual right to re-employment was created by Sindermann's reliance upon guidelines promulgated by the state university system and provisions that were present in a faculty guide. The court held that, in the absence of such a property interest, "a mere subjective expectancy" is not protected by procedural due process. In Roth, the court determined that the property interest entitling one to a Due Process hearing must consist of more than a "unilateral expectation" of re-employment, and that there must be a legitimate claim of entitlement to the interest. The court concluded that the teacher did not possess a legitimate claim to re-employment because there was no "state statute or University rule or policy that secured his interest in re-employment."

By these decisions it is made apparent that whether the peculiar facts of the particular case create an implied contract which requires a Due Process hearing for its termination is a question of state law.

The applicable statute of Louisiana provides for a procedure which, as in the Roth case, precludes the acquisition of a property interest in employment until a contract has been made as required by the statute. The Louisiana statute provides that the Parish School Board:

"shall determine the number of schools to be opened, the location of the school houses, the number of teachers to be employed, and select such teachers from nominations made by the parish superintendent, provided that a majority of the full membership of the board may elect teachers without the endorsement of the superintendent." LSA-R.S. 17:81.

The Louisiana courts are not unfamiliar with the requirement that contracts of employment of teachers cannot be made by a letter from the Superintendent without the action of the school board. The Louisiana Court of Appeals has said:

"this letter falls far short of constituting such a contract as is contemplated under the statute. In the first place, under section 20 of the Act, the School Board itself is charged with the selection of teachers, such selection to be made from nominations presented it by the Parish Superintendent. The Board itself has the authority to employ teachers either by the month or the year and to fix their salaries. Under Section 49 of the Act it is provided that no person shall be appointed to teach without a written contract for the scholastic year in which the school is to be taught, which contract is to be signed by the Superintendent. It is to be noted that the letter on which plaintiff relies is in the first place purely an offer of a position as plaintiff is therein specifically asked by the Superintendent to let him know if he will accept the position tendered to him. In the second place there is absolutely nothing in the letter itself, nor in plaintiff's petition to indicate that the Superintendent was authorized by the School Board to make the offer therein contained." Blankston v. Tangipahoa Parish School Board, La.App., 1st Cir. 1939, 190 So. 177.

In Richie v. Ascension Parish School Board, La.App., 1st Cir. 1941, 200 So. 681, it was held that a letter from the parish superintendent to a teacher, requesting that she report for work, could not be construed into contract between the teacher and the board because there was no evidence that it was authorized by the board.

Not only is a letter from the parish superintendent insufficient to create a property interest in continued employment, but the parish superintendent is powerless to create, unilaterally, any right to employment. In State v. Winn Parish School Board, La.App., 2d Cir. 1942, 9 So.2d 342, the plaintiff maintained that she became an employee of the school board when the parish superintendent permitted her to teach in a parish school. The court determined that there was no employment contract prior to the execution of a contract between the teacher and the school board. The court said:

"Therefore, since the power to select, employ and discharge employees is a privilege and a power peculiar to a school board and may not be delegated, it unquestionably follows that the action of a superintendent in selecting and, so far as he is able, employing a teacher without the knowledge or consent of the board, is so palpably ultra vires as to create no obligation whatever as against the board, and this being true, certainly by no stretch of the imagination could such teacher enjoy the status of employee of the board."

The property interest, required by the Perry case, supra, may not arise through an estoppel against the school board. In the Bankston case, supra, and Brown v. St. Bernard Parish School Board, La.App., Orleans 1930, 131 So. 760, the court rejected plaintiffs' contentions and held that the teacher selection processes, the actions of the superintendent in assigning teaching positions prior to the actual execution of a contract with the school board, and reliance upon the superintendent's nominations and letters did not estop the school board from denying the existence of an employment contract. The court stated that the school board is not bound by the acts of the parish superintendent. In Brown it is said that:

"a private corporation which by its conduct leads one to believe that an agent has authority is therefore estopped to deny that authority, but that rule does not apply to a public body or board the duties and powers of whose officers are fixed by law. Those who deal with such officers are bound to know the law with reference thereto. In State v. La Cypress Lumber Company, 144 La. 559, 80 So. 722, the court said: 'The state is not estopped by the unauthorized acts of officers whose powers are defined and limited by law' ".

Employment may not arise through an estoppel against the school board, but only through the execution of contracts between the teacher and the board. State v. Winn Parish School Board, La.App., 2d Cir. 1942, 9 So.2d 342; Richie v. Ascension School Board, supra.

The appellant had nothing more than an expectancy. This does not create a right or consummate a contract. The Louisiana court has said:

"There is no binding employment on the part of the school board or the teacher until the written contract between them is executed by both parties thereto. Prior to the signing or execution of the contract, either the teacher or school board may withdraw from any former agreement without any reason and without liability on the part of either, for the reason that there is no binding contract or agreement until the written contract is executed." Lanier v. Catahoula Parish School Board, La.App., 2d Cir. 1934, 154 So. 469.

More might be said. Enough has been said. The principal had no tenure. He had no property right, contractual or otherwise, to re-employment. His claim to the protection of the constitution must be based upon a right created by the Louisiana law. I can see no such right. The majority vacate and remand. I would reverse and remand with directions to enter judgment for the school board.