Leonard L. Rowe v. Board of Education of the City of Chattanooga and Dr. Harry Reynolds, Superintendent of Schools ( 1996 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
November 4, 1996
FOR PUBLICATION
Cecil Crowson, Jr.
Appellate C ourt Clerk
LEONARD L. ROWE, ) Filed: November 4, 1996
)
Plaintiff/Appellee, ) HAMILTON CHANCERY
)
v. ) Hon. R. Vann Owens,
) Chancellor
BOARD OF EDUCATION of the )
CITY OF CHATTANOOGA; )
and DR. HARRY REYNOLDS, )
SUPERINTENDENT of SCHOOLS )
of the CITY OF CHATTANOOGA, )
TENNESSEE, ) No. 03-S01-9603-CV-00033
)
Defendants/Appellants. )
FOR PLAINTIFF/APPELLEE: FOR DEFENDANTS/APPELLANTS:
Richard T. Klinger Randall L. Nelson
Kennedy, Fulton, Koontz & Farinash City of Chattanooga, City Attorney
Chattanooga, Tennessee Chattanooga, Tennessee
Michael A. McMahan &
Kenneth O. Fritz, Special Counsel
Chattanooga, Tennessee
FOR AMICUS CURIAE DON LOFTIS
SUPERINTENDENT OF SCHOOLS, HAMILTON COUNTY:
William E. Godbold, III & D. Scott Bennett
Chattanooga, Tennessee
OPINION
TRIAL COURT AND
COURT OF APPEALS REVERSED. DROWOTA, J.
The Board of Education of the City of Chattanooga and Dr. Harry Reynolds,
Superintendent of Chattanooga schools, appeal from the Court of Appeals’
decision finding that Leonard L. Rowe was deprived of liberty without due process
of law by a Board policy which renders any employee previously terminated “for
cause, inefficiency, or immorality” ineligible for future employment within the
Chattanooga school system. The primary issue for our review is whether adoption
of Board policy 4117.5 deprived Rowe of a constitutionally protected property or
liberty interest to which the requirements of procedural due process apply. 1 For
the reasons that follow, we conclude that due process is not implicated because
the Board policy did not deprive Rowe of either a protected property or liberty
interest. Accordingly, the judgment of the Court of Appeals is reversed.
BACKGROUND
Rowe is a certified and licensed school teacher. In addition, he has two
master’s degrees and is certified as an educational specialist. He began teaching
in the Chattanooga school system in 1967, but was denied tenure at the end of
the 1968-69 school year. After brief service in the military, Rowe returned to
teaching in Chattanooga and was granted tenure in either 1972 or 1973. He
continued teaching in the Chattanooga system until 1980 when he was discharged
“for cause, including insubordination, and inefficiency.” The charges against
Rowe primarily arose from his conduct during and after a discussion with the
principal about Rowe’s evaluation. Specifically, Rowe was charged with walking
1
Since our disposition of this issue resolves the case, we pretermit the other issues raised
by the parties. With respect to Rowe’s argument in his brief to this Court that the Board’s policy
and refusal to consider him for future employment violates substantive due process we note that
other courts considering the issue have declined to extend substantive due process protections to
property interests in employment or to “occupational liberty interests.” Zorzi v.County of
Putnam, 30 F.3d 885, 894-95 (7th Cir. 1994); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.
1994); Sutton v. Cleveland Board of Education, 958 F.2d 1339, 1350-51 (6th Cir. 1992);
Reinhart v. City of Maryland Heights, 930 F. Supp. 410, 413 (E.D. Mo. 1996).
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out of two conferences called by the principal, refusing to enter into discussion
with the principal, and stating that the principal had not been truthful about
previous events. After a hearing before the Board, Rowe was dismissed. Rowe
appealed the dismissal, but the Board’s decision was upheld by both the
Chancellor and the Court of Appeals.
Beginning in 1986 or 1987, Rowe again attempted to obtain a teaching job
in the Chattanooga school system. He was placed on the substitute teacher’s list
in 1987 and worked on a part-time, as needed basis, approximately one-half of
the school days that year. There were no negative occurrences reported as a
result of his employment, and Rowe received favorable recommendations for full
time employment from the principals of two schools where he taught. Sometime
after the school year ended, however, Reynolds, the new superintendent of
schools, was asked by Board members why Rowe’s name was placed on the
substitute teacher’s list when he previously had been discharged for cause by the
Board. Upon verifying Rowe’s prior for cause dismissal, Reynolds directed that
Rowe’s name be removed from the substitute teacher’s list.
Despite his removal from the substitute teacher’s roster, Rowe continued to
apply for full-time, permanent employment within the Chattanooga school system.
When his efforts proved unsuccessful, Rowe filed a complaint with the City of
Chattanooga Human Rights and Human Relations Commission in 1990, alleging
that the Board had discriminated against him on the basis of race by removing his
name from the substitute teacher’s list and by hiring applicants for two vacant
principal positions for which he had applied. After a full investigation and a
hearing, the Commission concluded that Rowe had failed to establish racial
discrimination, but recommended that the Board adopt a uniform policy to address
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“previously dismissed teachers’ and substitute teachers’ ability to obtain
employment within the Chattanooga Public Schools.” In response, the Board, on
April 8, 1991, adopted policy 4117.5, which provides as follows:
Any employee of the Board of Education terminated for
cause, inefficiency, or immorality shall not be eligible
for reemployment, whether at the same or different
level. Neither shall such individuals be eligible for
employment on a contract basis, including serving as
substitute teacher.
Thereafter, Rowe filed a complaint pursuant to 42 U.S.C. § 1983 against
the Board and Reynolds, alleging that their refusal to consider him for a position in
the Chattanooga school system violated his rights under the Fourteenth
Amendment of the United States Constitution. Rowe sought a declaratory
judgment that Board policy 4117.5 was an unconstitutional infringement upon his
property and liberty rights to pursue his chosen occupation. In addition, he sought
back pay from the time the Board had adopted the policy, alleging that he would
have been hired had the policy not been adopted.
Following a bench trial, the chancellor invalidated the policy, but refused to
award Rowe any other relief, concluding there was no proof “to indicate that Mr.
Rowe would have been rehired but for this policy statement.”
Rowe appealed from this judgment to the Court of Appeals. That court
affirmed the chancellor’s ruling that the policy is unconstitutional, concluding that
the Board’s adoption and enforcement of the policy had deprived Rowe of his
constitutionally protected liberty interest in pursuing his chosen occupation without
due process of law. However, the Court of Appeals reversed the trial court’s
finding that Rowe would not have been rehired even if the policy had not been
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adopted. The Court of Appeals remanded the cause to the trial court for a hearing
to determine the damages, if any, to which the plaintiff is entitled.
We granted the Board and Reynolds permission to appeal to address the
parameters of the property and liberty interests which are protected by the
Fourteenth Amendment’s guarantee of due process. For the reasons that follow,
we reverse the judgment of the trial court and the Court of Appeals.
PROCEDURAL DUE PROCESS
Section 1983 of Title 42, U.S.C., “provides a remedy for the deprivations of
rights secured by the Constitution and laws of the United States.” Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 924, 102 S. Ct. 2744, 2747, 73 L. Ed. 2d
482 (1982). In this case, Rowe alleged that Board policy 4117.5 violated his rights
under the Fourteenth Amendment which protects individuals against government
deprivations of “life, liberty or property without due process of law . . . .” U.S.
Const. amend. XIV, § 1. A section 1983 action based upon procedural due
process thus has three elements: (1) a liberty or property interest protected by the
Constitution; (2) a deprivation of the interest by the government; and (3) lack of
process. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). In
addressing a claim of an unconstitutional denial of procedural due process, we
apply a two-step analysis. Initially, we must determine whether Rowe’s interest
rises to the level of a constitutionally protected liberty or property interest. If there
is a constitutionally protected interest, then the second step is to weigh the
competing interests of the plaintiff and government to determine what process is
due and whether deprivation has occurred. Board of Regents of State Colleges
v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972).
Rowe contends that the defendants violated his “property” and “liberty” interests,
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embodied in the Due Process Clause of the Fourteenth Amendment, to pursue his
chosen occupation and profession without arbitrary governmental interference.
A. Property Interest
The Fourteenth Amendment’s procedural protection of property safeguards
the security of interests that a person has already acquired in specific benefits.
Roth, 408 U.S. at 576, 92 S.Ct. at 2708. Property interests are not created by the
federal constitution. Instead, they are created and defined “by existing rules or
understandings that stem from an independent source such as state law.” Roth,
408 U.S. at 577, 92 S. Ct. 2709. To be entitled to procedural due process
protection, a property interest must be more than a “unilateral expectation” or an
“abstract need or desire.” It must be a “legitimate claim of entitlement” to a
specific benefit. Id. Indeed it is the purpose of the ancient institution of property
to protect those expectations upon which people rely in their daily lives. Id.
Under Tennessee law, teachers who have been granted tenure have a
constitutionally protected property interest in continued employment which can not
be extinguished unless the teacher is afforded procedural due process. Williams
v. Pittard, 604 S.W.2d 845, 849 (Tenn. 1980); Tenn. Code Ann. § 49-5-511
(1996). Substitute teachers are not tenured, however, and have no “legitimate
claim of entitlement” to continued employment sufficient to give rise to a property
interest. Tenn. Code Ann. § 49-5-503 (1996). Moreover, Rowe’s attempts to
attain future employment with the Chattanooga system does not rise to the level of
a “legitimate claim of entitlement,” but is more accurately described as a “unilateral
expectation” or an “abstract need or desire” for it. Therefore, Rowe has failed to
establish that he was deprived of a constitutionally protected property interest by
the adoption of policy 4117.5 or his removal from the substitute teachers’ roster.
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B. Liberty Interest
We next consider whether Rowe was deprived of a constitutionally
protected liberty interest without due process of law by the adoption of policy
4117.5. The concept of liberty in Fourteenth Amendment jurisprudence includes
the “liberty to engage in any of the common occupations of life . . . .” Roth, 408
U.S. at 572, 92 S.Ct. at 2707. In Roth, a non-tenured teacher at a state university
alleged his due process rights were violated when the school failed to provide him
with a statement of reasons or a hearing when it declined to renew his one-year
contract. The Supreme Court concluded that a simple refusal to rehire, without
more, does not infringe upon a liberty interest and trigger due process. In so
holding, however, the Roth court discussed those situations in which a liberty
interest might be implicated by unfavorable employment action.
The State, in declining to rehire the respondent, did not
make any charge against him that might seriously
damage his standing and associations in the
community. It did not base the nonrenewal of his
contract on a charge, for example, that he had been
guilty of dishonesty or immorality. Had it done so, this
would be a different case. For where 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. In the present case,
however, there is no suggestion whatever that the
respondent’s good name, reputation, honor, or integrity
is at stake.
Similarly, there is no suggestion that the State,
in declining to re-employ the respondent, imposed on
him a stigma or other disability that foreclosed his
freedom to take advantage of other employment
opportunities. The State, for example, did not invoke
any regulations to bar the respondent from all other
public employment in state universities. Had it done
so, this, again, would be a different case, for to be
deprived not only of present government employment
but of future opportunity for it certainly is no small
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injury. . . .
Roth, 408 U.S. at 573-74, 92 S. Ct. 2707 (footnotes, internal citations, and
quotations omitted).
Roth’s general outline of factual circumstances giving rise to a liberty
interest has been further developed in a series of subsequent cases beginning
with Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). In that
case, the Court held that injury to reputation, standing alone, does not implicate a
liberty interest protected by the Fourteenth Amendment. Rather, the Paul court
explained that an actionable liberty interest deprivation requires the loss,
infringement or denial of a governmental right or benefit previously enjoyed,
coupled with alleged defamatory communications by government officials which
have a stigmatizing effect. Paul, 424 U.S. at 710-12, 96 S.Ct. at 1165. Later that
same year, the Court held that no liberty interest deprivation occurs unless the
alleged defamatory communications are made public and the plaintiff alleges that
the defamatory communication is substantially false. Bishop v. Wood, 426 U.S.
341, 349, 96 S. Ct. 2074, 2079, 48 L. Ed. 2d 684 (1976); Codd v. Velger, 429 U.S.
624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977). Most recently, in Siegert v. Gilley, 500
U.S. 226, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991), the Court refused to recognize
a protected liberty interest in favor of a clinical psychologist who resigned from
employment at a federal hospital and who, three weeks later, was the subject of
an extremely negative employment reference. Even though the negative
reference foreclosed employment positions at other federal facilities, the Court
refused to recognize the loss as a protected liberty interest because the alleged
defamation was not uttered incident to the termination of the plaintiff’s
employment, but allegedly occurred several weeks after his voluntary resignation.
Siegert, 500 U.S. at 234, 111 S.Ct. at 1794.
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From the foregoing cases it is clear that a plaintiff claiming a liberty interest
deprivation must allege a loss, infringement, or denial of a governmental right or
benefit previously enjoyed, coupled with published defamatory communications by
government officials in connection with the loss, infringement or denial of the right
or benefit. In addition, a plaintiff must allege both that the defamatory
communications are substantially false and that they have such an extensive
stigmatizing effect upon plaintiff’s standing and associations in the community that
future employment opportunities are foreclosed.
Applying that test to the facts in this case, it is clear that Rowe failed to
establish a liberty interest deprivation. Assuming that Board policy 4117.5 denies
to Rowe a governmental right previously enjoyed -- the right to apply for
employment within the Chattanooga City school system-- Rowe does not allege
that the Board or Reynolds or any other government official published
substantially false defamatory communications about him in connection with the
denial of that right which resulted in foreclosure of future employment
opportunities. For example, Rowe does not allege that the Board or Reynolds, in
removing his name from the substitute teacher’s list and adopting the policy
rendering him ineligible for future employment within the Chattanooga city school
system, leveled false charges of dishonesty or immorality against him. Had such
an allegation been present, then due process would accord to Rowe notice and a
hearing in which he would be given the opportunity to “clear his name.” Roth, 408
U.S. at 573, n. 12, 92 S.Ct. at 2707, n. 12; Codd, 429 U.S. at 627, 97 S.Ct. at 884.
Here, however, Rowe asserts only that the Board and Reynolds removed
his name from the substitute teacher’s list and refused to consider him for future
employment within the Chattanooga school system because he previously had
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been dismissed “for cause, including insubordination, and inefficiency.” Rowe has
failed to allege that the reasons given by the Board for his removal and ineligibility
for future employment were defamatory and substantially false. Rowe does not
assert that the description of his prior dismissal is inaccurate. Nonetheless, such
an allegation would not salvage Rowe’s claim because liberty interests are not
implicated by allegations of improper or inadequate performance. Joelson v.
United States, 86 F.3d 1413, 1420-21 (6th Cir. 1996); Gregory v. Hunt, 24 F.3d
781, 788 (6th Cir. 1994); Wheaton v. Webb-Petett, 931 F.2d 613, 617 (9th Cir.
1991). To implicate liberty interests, the defamatory governmental communication
must stigmatize or otherwise burden the plaintiff so that he is not able to take
advantage of other employment opportunities. Joelson, 86 F.3d at 1421; Portman,
995 F.2d at 907. A charge that merely makes a plaintiff less attractive to other
employers but leaves open a definite range of opportunity does not constitute a
liberty deprivation. Roth, 408 U.S. at 574, n. 13, 92 S.Ct. at 2707, n. 13. Here,
Rowe’s removal and ineligibility resulted from his prior dismissal for cause.
Neither the Board’s policy nor Reynolds actions stigmatized Rowe or impaired his
ability to seek and obtain employment outside the Chattanooga school system.
Rowe was not deprived of a constitutionally protected liberty either by his removal
from the substitute teachers’ list or by the Board’s adoption of policy 4117.5. He
can not now complain about the effect of his prior dismissal for cause, a
proceeding in which he was afforded due process, on his future employment
opportunities. Finally, the Board’s policy, which is designed to ensure competent
educators by denying employment to persons previously discharged for cause, is
rational and does not violate equal protection.
CONCLUSION
Because Rowe has failed to prove the existence of a constitutionally
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protected property or liberty interest, the requirements of procedural due process
do not apply in this case. Accordingly, the judgments of the Court of Appeals and
the chancery court are reversed and the cause dismissed. Costs of this appeal
are taxed to the appellee, Leonard L. Rowe.
_____________________________________
Frank F. Drowota, III
Justice
Birch, C. J.
Anderson, Reid, JJ
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