Evelyn J. Johnson v. S. A. Fraley Jr. , 470 F.2d 179 ( 1972 )

ALBERT V. BRYAN, Senior Circuit Judge:

Suing under the Civil Rights Act, 42 U.S.C. § 1983,¹ as tooled by 28 U.S.C. § 1343, Evelyn J. Johnson asked for in-junctive and indemnifying relief against the School Board and Superintendent of' Schools of Russell County, Virginia, for refusal to reemploy her as a teacher, despite her continuous service of 29 years. The point of her complaint is that the defendants, authorized by the State to operate the schools, took this action without first informing her of the reasons for it and without granting her an opportunity to meet them. This grievance is braced by allegations that the manner of disemployment clashed with the Board’s own regulation as well as State law. She condemns the procedure as odious to 14th Amendment due process.

The District Court, 327 F.Supp. 471, found that, as is conceded, she was employed only on a one-year basis, without stipulation for tenure. It also found that “[t]he only federally protected right plaintiff claims to be violated by the defendants is ‘substantive . . . and pretermination procedural due process,’ in other words, protection against discharge except for cause and an administrative hearing prior to termination of employment. The plaintiff disavows the violation of any other federally protected right by the defendants”. In this shape of things, the Court concluded, in agreement with the defendants’ argument, there was no denial of any right, privilege or immunity within the ken of the Civil Rights Act and “no col-orable federal claim”. Hence, the complaint was dismissed “without prejudice, for want of [Federal] jurisdiction”, leaving no room for pendent adjudication on the protests under State law and local regulations. The plaintiff appeals.

We reverse on the authority of Supreme Court pronouncements delivered subsequent to the consideration by the District Court: Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).²

The setting in which the cause came to the District Court was this. Appellant’s career as a teacher in the Russell County Schools extended without break from 1942 until April 13, 1970, when she received a letter from the Superintendent stating that she would not be retained for the 1970-71 session. During her teaching years there was in effect a School Board regulation stipulating that:

“In the event a teacher is not to be given a contract for the succeeding school year, the superintendent or his designated representative must notify the teacher in writing not later than March 15, stating the reasons for his decision. The superintendent shall arrange with any such teacher who desires it a hearing with him and school personnel who have observed the teacher’s work. If the teacher is then dissatisfied with the decision of the superintendent, full and free opportunity shall be granted for an appeal to the school board.”

This regulation, the school officials asserted, was superseded by a 1968 Act of the Virginia legislature establishing a uniform and exclusive procedure for the engagement of teachers. Va.Code Ann. § 22-217.1 (Repl.Vol.1969). It prescribed that written notice of nonrenewal of a teacher’s contract must be given on or before April fifteenth, of each year. Id. § 22-217.4. As the equivalent of “tenure”, the designation of “continuing contract” was used. To achieve that status the teacher must serve a probationary term of three years.

Because at the time of her termination, 1970, appellant had not, and could not, have served the three-year trial period fixed by the 1968 Act, it was assumed that she had not then attained a “continuing contract”. The statute was amended in 1969 to allow, “in the discretion of the local school board”, service prior to 1969 to satisfy the probationary term. This option was never exercised in favor of any teacher. Upon completion of probation, teachers would become entitled to continuing contracts “during good behavior and competent service”. Id. § 22-217.4. The 1968 enactment also carried the following provisions:

“§ 22-217.5. Dismissal of teacher or placing on probation; grounds.— Teachers may be dismissed or placed on probation for the following reasons; Ineompetency, immorality, noncompliance with school laws and regulations, disability as shown by competent medical evidence, or for other good and just cause.

“§ 22-217.6 Same; notice to teacher. — Written notice setting forth the reasons for dismissal or placing on probation and a statement that the teacher may request a hearing before the school board within fifteen days after receiving the notice must be sent to the teacher. A personal interview with the teacher stating the reason for dismissal or placing on probation may be employed in lieu of such written notice.

“§ 22-217.7. Same; hearing. — The hearing before the school board, which shall be private unless the teacher requests a public one, must be set within thirty days of the request, and the teacher must be given at least fifteen days’ written notice of the time and place. At the hearing the teacher may appear with or without counsel and be heard, presenting testimony of witnesses and other evidence.

“§ 22-217.8. Same; decision of school board. — The school board shall give the teacher its written decision within five days after the hearing, together with a copy of the transcript of the proceedings, which shall be furnished without cost. A majority vote of the school board is necessary for dismissal.”

These four sections, appellees argue, do not apply to nonrenewals but solely to dismissals, emphasizing that Evelyn Johnson was not dismissed. Furthermore, they argue, these provisions cover continuing contract teachers alone.

. Appellant pleaded she had rendered “faithful and competent service”. This allegation the school authorities traversed. She denounced the school officials’ action as irreparably damaging her professional reputation and thereby crippling her ability to earn a livelihood, since teaching was her only occupation.

We do not resolve these disputes, reciting them only to depict the environment of appellant’s resort to the 14th Amendment. This restraint seems peculiarly fitting since the trial court reached decision exclusively upon the absence of a Federal question. However, we do look to the existence of these controversies to see if they tendered problems demanding consideration of the Amendment in their solution, and thus established a Federal case.

In this canvass, we find Sindermcmn and Roth, supra, both declaring that injury to professional reputation or livelihood caused by an abrupt termination of an engagement of substantial longevity warrants an inquiry upon whether the means pursued satisfied constitutional due process. These decisions avouch that continuous employment over a significant period of time —such as appellant’s 29 years — can amount to the equivalent of tenure. When it does, dissolution of the relationship requires prior “notice and an opportunity to be heard”, or else due process is wanting. Hence, because of her long school connection and the failure of the Board and Superintendent, acting as State representatives, to accord appellant due process, Evelyn Johnson’s charges could rise to 14th Amendment magnitude.

In Board of Regents v. Roth, supra, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), a professor was appointed to the faculty of a State university on the express understanding that his employment would commence September 1, 1968 and end June 30, 1969. Upon completion of his term thé professor was duly notified he would not be rehired for the next academic year. Admittedly without tenure status, he sued in the Federal District Court charging that the determination not to retain him for the following year “infringed his 14th Amendment rights”. Particularly, he charged that the failure of the University to inform him of the reasons for this action and to afford him a chance to be heard thereon abrogated his right to procedural due process of law.

The Supreme Court ruled that under these facts the professor had no constitutional right to what he sought. “The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits”, said the Court. Although, it continued, in the instant circumstances “the [professor] surely had an abstract concern in being rehired, ... he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment”. Id. at 578, 92 S.Ct. at 2710.

Nevertheless, the Court impliedly recognized that, even without tenure, if the nonrenewal could “seriously damage his [the professor’s] standing and associations in his community.” Id. at 573, 92 S.Ct. at 2707, his due process claims would be sound. “For ‘[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ In such a case, due process would accord an opportunity to refute the charge before University officials.” Id. at 573, 92 S.Ct. at 2707 (citations omitted). That is precisely the appellant teacher’s assertion in respect to the school officials’ refusal to renew her engagement of 29 years.

In Perry v. Sindermann, supra, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a professor had been employed in a State college system for 10 successive years under annual contracts. Without explanation or hearing, the Regents voted not to renew his contract. In a suit, rested on the 14th Amendment, the professor attributed the Regents’ action to his public criticism of the college administration, thus constituting an intrusion upon his right to freedom of speech. Additionally, he asserted that the failure to give an opportunity for a hearing “violated the Fourteenth Amendment’s guarantee of procedural due process”. Id. at 595, 92 S.Ct. at 2696.

“The first question presented”, said the Supreme Court, “is whether the [professor’s] lack of a contractual or tenure right to re-employment, taken alone, defeats his claim that the nonre-newal of his contract violated the First and Fourteenth Amendments. We hold that it does not.” Id. (accent added). Again:

“A written contract with an explicit tenure provision clearly is evidence of a formal understanding that supports a teacher’s claim of entitlement to continued employment unless sufficient ‘cause’ is shown. Yet absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a ‘property’ interest in re-employment. For example, the law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be ‘implied’.” Id. at 601, 92 S.Ct. at 2699 (citation omitted).

Further:

“A teacher, like the [professor], who has held his position for a number of years, might be able to show from the circumstances of this service —and from other relevant facts — that he has a legitimate claim ... to job tenure. Just as this Court has found there to be a ‘common law of a particular industry or of a particular plant’ that may supplement a collective-bargaining agreement, so there may be an unwritten ‘common law’ in a particular university that certain employees shall have the equivalent of tenure.” Id. (citation omitted).

The case was remanded to give the professor an opportunity to prove his entitlement to continued employment.

These authoritative enunciations confirm Evelyn Johnson’s protests of 14th Amendment deprivations as securely pleaded.

In summary, we do not decide whether the school authorities did or did not have a right, power or cause not to rehire appellant Johnson. We hold only that she stated a cause of action on the 14th Amendment’s Due Process Clause³. The judgment of dismissal will be vacated and the case remanded for trial on the complaint.

Vacated and remanded.

1 . § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to tile deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

2 . After argument we postponed decision to await the Court’s rulings in these two cases.

3 . For a comprehensive discussion of this subject, viele “Non-Tenured Teachers and Due Process: The Eight to a Hearing and Statement of Reasons, 29 Wash. and Lee L.Rev. 100 (1972).