Moore v. Knowles

• Decision Date: 02 August 1973
• Docket Number: No. 71-3523.,71-3523.
• Citation: 482 F.2d 1069
• Parties: H. L. MOORE, Plaintiff-Appellee-Cross Appellant, v. J. C. KNOWLES et al., Defendants-Appellants-Cross Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 1069 (1973)

H. L. MOORE, Plaintiff-Appellee-Cross Appellant, v. J. C. KNOWLES et al., Defendants-Appellants-Cross Appellees.

No. 71-3523.

United States Court of Appeals, Fifth Circuit.

August 2, 1973.

R. A. Wilson, A. B. Hankins, Amarillo, Tex., for appellant.

Larry Watts, John G. Abbott, Houston, Tex., Stephen J. Pollak, Atty., Washington, D. C., for appellees.

Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.

ON PETITION FOR REHEARING

PER CURIAM:

Upon consideration of the petition for rehearing of the appellee and cross-appellant Moore and the response of the appellants and cross-appellees Knowles, et al, we withdraw our opinion, reported at 466 F.2d 531, and issue the following opinion.

Moore, the plaintiff below, was a male teacher in the eighth grade of a Texas school system, teaching both male and female students. In early 1970, female pupils made assertions to law enforcement officers that Moore had engaged in or attempted misconduct with them of a sexual nature. Immediately school officials excluded Moore from classroom teaching. Subsequently the school board, without a proper hearing, suspended him from teaching duties, with pay, for the remainder of the 1969-70 school year. Later the board, without hearing, refused to consider renewal of Moore's contract for the 1970-71 school year.

Moore sued, claiming violation of due process because the foregoing actions had been taken without hearing. The District Court treated the first and second actions together as a suspension with pay for the remainder of the school year, and, after balancing the considerations involved, including the nature of the charges and their seriousness, and the board's responsibilities to all pupils and their parents, concluded that there had been no violation of due process. Moore v. Knowles, 333 F.Supp. 53 (N. D.Tex.1971).

As to the refusal of the board, without a hearing, to consider renewal of Moore's contract for 1970-71, the court found this to be a violation of due process and awarded Moore back pay for 1970-71 and attorney fees. It based the entitlement to hearing on the ground that while Moore lacked tenure he had an expectancy of employment. The defendants appealed and Moore cross-appealed.

The exclusion of Moore from continuing to perform his teaching duties occurred on January 7, 1970, immediately after the girl students made their assertions to law enforcement officers. In a conference on January 7, attended by law enforcement officers, Moore was informed of the pupils' charges. He was not then formally suspended but was barred from continuing his classroom teaching duties. His pay continued. We agree with the analysis of the District Court that, upon balancing all the considerations involved, the board did not violate due process by forthwith, and pending further developments, directing that Moore must not continue teaching his classes. School officials, responsible for the safety of teenage students, had a range of discretion in acting to meet what reasonably could be considered as an emergency situation and to keep school going. Cf. Dunn v. Tyler Independent School District, 460 F.2d 137 (CA5, 1972); Ferrell v. Dallas Independent School District, 392 F.2d 697, 704 (CA5, 1968).

On January 28 the county grand jury indicted Moore on four charges: two separate charges of aggravated assault and battery and one of contributing to delinquency of a minor, all allegedly relating to one child; one charge of assault with intent to rape and indecent exposure, allegedly concerning another child. Beginning around January 13 Moore had begun to seek a hearing before the board. On February 11, without a proper hearing, the school board notified Moore that he was relieved from his teaching duties for the remainder of the school year, with pay, pending further investigation by the board and further consideration of the matter. For the same considerations spelled out above, plus the intervening indictments by the grand jury, we consider that the board did not err in changing Moore's status, without a hearing, from that of teacher without portfolio to suspension from teaching duties for the remainder of the year, with pay. In reaching this conclusion we consider the grand jury's actions to have special significance, which we discuss below.

We turn now to the refusal to consider renewal of Moore's contract. On February 27 the superintendent informed Moore that the renewal of his contract for 1970-71 would not be acted upon pending resolution of the "problems with which you are acquainted." In the subsequent litigation in District Court board members acknowledged that their actions concerning Moore were taken as a consequence of the outstanding indictments and that in other respects he was a qualified teacher. The court found that Moore had an expectancy of employment and that the school board's failure to give him a hearing on its refusal to renew his contract for 1970-71 was a violation of due process, and the court awarded him back pay for 1970-71 plus attorney fees. We reversed as to the failure to renew the contract for 1970-71, based on Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), in which the Supreme Court held that the mere expectancy of employment did not necessitate a hearing.

In his petition for rehearing Moore makes two major points. The first is that he is entitled to a remand to afford him the opportunity to offer proof tending to show that while he lacked contractual or formal tenure he nevertheless possessed a "property" interest in his continued employment as defined by the new Sindermann principles. Sindermann was decided at the trial level on summary judgment. The Supreme Court remanded the case to afford plaintiff an opportunity to prove his claim of constructive tenure. While the present case was fully tried below, we must and do recognize that the precise focus, factual and legal, was not upon the incidents of employment and practices of the school system that might have given Moore a status sufficiently close to tenure that he would enjoy a "property" interest in future employment. Rather under the law then existing in this circuit all Moore needed to establish was the expectancy of employment that Sindermann was to later hold was not sufficient. We agree with plaintiff that he is entitled to his day in court under the new standards laid down by Sindermann. We withdraw our judgment of reversal as to back pay for 1970-71 and attorney fees, vacate the District Court judgment with respect to those matters, and remand the case for further consideration by it under the new standards of Sindermann. See, Johnson v. Fraley, 470 F.2d 179 (CA4, 1972).¹

As his second point, Moore refers to Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), decided the same day as Sindermann, in which the Supreme Court recognized that even a teacher without tenure or formal contract is entitled to a hearing if a decision not to rehire him deprived him of an interest in "liberty" without due process. He correctly points out that we should specifically consider the applicability of Roth. We now do so. In Roth the Supreme Court said:

The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his 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." Citations. In such a case, due process would accord an opportunity to refute the charge before University officials.

* * * * * *

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.

408 U.S. at 573, 92 S.Ct. at 2707, 33 L. Ed.2d at 558-559. Moore contends that his case is within the "different case" to which the Supreme Court referred. Doubtless the charges of sexual misconduct would "seriously damage his standing and associations in the community"; the charge was one of immorality; his "good name, reputation, honor or integrity" were at stake; and the state action "imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities."²

But this case involves considerations not present in the Supreme Court's hypothetical "different case." The law enforcement machinery of the State of Texas had intervened. Undoubtedly the board's acts in first suspending Moore from teaching duties for the remainder of the year and then declining to consider his contract for renewal added to the damage to Moore's reputation, but the real "badge of infamy" flowed from the indictments and not from what the board did in reacting to them, and no action by the board could clear Moore's name. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Board of Regents v. Roth, 408 U.S. at 573 fn 12, 92 S.Ct. at 2707 fn 12, 33 L. Ed.2d at 558 fn 12.

We conclude that the action of the board in declining, without hearing, to consider renewal of Moore's contract, was not a violation of due process under Roth. The fact of the indictments was not in dispute. Moore had knowledge of the indictments and had notice of the board's reasons for refusing to act on his contract.³ Implicitly, if not explicitly, the board concluded, as had the superintendent initially, that a male eighth grade teacher charged with sexual misconduct with his teen-age female pupils should not be in contact with them in the teaching process. A public employing body, having knowledge of the existence of charges such as were here made, as part of its...