Charles Findeisen v. North East Independent School District ( 1984 )

GARWOOD, Circuit Judge,

concurring.

I concur. The present summary judgment record does not entirely exclude the possibility that plaintiff’s resignation was procured and accepted by the District essentially in bad faith and under false pretenses in order to terminate his employment for disciplinary-type reasons that would otherwise require a hearing for such a tenured teacher. Were that the situation, more than an ordinary breach of contract¹ would arguably be involved and present decisional law would seemingly entitle plaintiff to relief under section 1983.

I am moved to say, however, that to the extent this result is based solely on the lack of “predeprivation” procedures, it appears to me to be most regrettable. There is here no claimed invasion of any substantive constitutional right. Nor is any liberty or reputational interest implicated. See Campos v. Guillot, 743 F.2d 1123 (5th Cir.1984). We are dealing only with the adequacy of state procedures to protect property. If, as may indeed be the case here, wholly adequate and previously well established state procedures exist under which the School District’s actions may be subsequently challenged “de novo” and full recovery had for any economic loss, it is difficult for me to see why other process should be constitutionally due for the protection of this character of “property.” This is the type of protection which the law has traditionally given for the vindication of the “property” rights of a private employee whose status is protected by a long-term employment contract. The implicit judgment has been that this is sufficient and appropriate.² The tenured employment relationship lacks the possessory and transferability rights the invasion of which may enhance the importance of predeprivation process in respect to other kinds of property. We recognize that the School District may employ the expedient of a leave of absence, presumably with pay, before affording process. By requiring “predeprivation” process, then, we are essentially protecting no more than the continuation of compensation pending resolution of the dispute, in preference to subsequent recovery under established procedures of back pay with interest and other appropriate damages and relief. That protection of this special, predeprivation kind is constitutionally required across the board for all state employees with any type of tenure or employment contract seems unrealistic and not in keeping with our traditional expectations and understandings.³ In this context, the strict “predeprivation” rule will also frequently result in holding unconstitutional systems which in fact provide more due process protection for this character of property right than that deemed sufficient under the predeprivation jurisprudence. These anomalies, however, appear sufficiently enmeshed in the current tangled web of the jurisprudence on this subject as to be beyond attempted amelioration by a panel of this Court.

1 . Cf. Casey v. Depetrillo, 697 F.2d 22 (1st Cir.1983); Vail v. Board of Education of Paris Union School District No. 95, 706 F.2d 1435, 1449 (7th Cir.1983) (dissenting opinion), affirmed by an equally divided court, - U.S. -, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984).

2 . Of course, the due process clause operates on states, not private employers, but the present question is not whether due process is required, but rather what character .of process is due. The private analogy is instructive as we deal here with state action in a proprietary, rather than a sovereign or governmental, capacity. It is difficult to understand why what has long been regarded as sufficient process to fairly protect the employment property rights of the tenured chief engineer at the local private junior college is insufficient to similarly protect the same rights of his counterpart at a comparable public institution.

3 . Cf. Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) ("Thus the crucial factor in this context — a factor not present in the case of ... the discharged government employee ... — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible [welfare] recipient of the very means by which to live while he waits."). It may also be noted that what due process protects in this instance is the property right, not the expectation that state-specified procedures will be followed as such. See Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) (“... merely conditioning an employee’s removal on compliance with certain specified procedures" does not give rise to a property right so as to invoke due process protection); Wells v. Hico Independent School District, 736 F.2d 243, 253 n. 13 (5th Cir.1984).