Stapp v. Avoyelles Parish School Bd.

• Decision Date: 17 January 1977
• Docket Number: No. 75-1741,75-1741
• Parties: Roy N. STAPP, Plaintiff-Appellant, v. AVOYELLES PARISH SCHOOL BOARD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 527

545 F.2d 527

Roy N. STAPP, Plaintiff-Appellant, v. AVOYELLES PARISH SCHOOL BOARD et al., Defendants-Appellees.

No. 75-1741.

United States Court of Appeals, Fifth Circuit.

Jan. 17, 1977.

George M. Strickler, Jr., New Orleans, La., Kidd & Katz, Stephen J. Katz, Monroe, La., for plaintiff-appellant.

Jeannette T. Knoll, Asst. Dist. Atty., 12th Judicial Dist., Parish of Avoyelles, Marksville, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, and JONES and GOLDBERG, Circuit Judges.

JOHN R. BROWN, Chief Judge:

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 principal ² 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 renewed ⁶ 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 Amendment ⁸ 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 response ¹² 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...