Unified School Dist. No. 480 v. Epperson

• Citation: 583 F.2d 1118
• Decision Date: 31 August 1978
• Docket Number: No. 75-1948,75-1948
• Parties: UNIFIED SCHOOL DISTRICT NO. 480, Plaintiff-Appellee, v. Lila EPPERSON and Oleta A. Peters, Defendants-Appellants. Lila EPPERSON and Oleta A. Peters, Plaintiffs-Appellants, v. J. L. SMALLING, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1118

583 F.2d 1118

UNIFIED SCHOOL DISTRICT NO. 480, Plaintiff-Appellee, v. Lila EPPERSON and Oleta A. Peters, Defendants-Appellants.

Lila EPPERSON and Oleta A. Peters, Plaintiffs-Appellants, v. J. L. SMALLING, et al., Defendants-Appellees.

No. 75-1948.

United States Court of Appeals, Tenth Circuit.

Argued Aug. 15, 1978.

Decided Aug. 31, 1978.

Robert M. Weinberg, Washington, D.C. (Michael H. Gottesman of Bredhoff, Cushman, Gottesman & Cohen; David Rubin, Washington, D.C., Ward D. Martin and John C. Frieden of Crane, Martin, Claussen, Hamilton & Barry, Topeka, Kan., on brief), for Lila Epperson and Oleta A. Peters, plaintiffs-appellants.

Donald R. Newkirk, Wichita, Kan. (Gerrit H. Wormhoudt and J. Eric Engstrom, Wichita, Kan., of counsel: Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., on brief), for J. L. Smalling, et al., defendants-appellees.

Before LEWIS, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a dispute between Unified School District No. 480, in Seward County, Kansas, and two of its former teachers, Oleta Peters and Lila Epperson. Peters and Epperson had been teaching 11 and 17 years respectively in District No. 480 when they, along with others, were notified by the District on February 9, 1972, that their teaching contracts would not be renewed for the ensuing school year of 1972-73. Peters and Epperson were each under one-year teaching contracts, which, under Kansas law, would automatically continue to the following school year unless written notice of an intention to terminate the contract was furnished by March 15. Kan.Stat. § 72-5411. The reason given by the District for not renewing the teaching contracts of both Peters and Epperson, along with others, was budgetary cuts, necessitated by a decrease in school enrollments with a corresponding decrease in state aid.

Peters and Epperson were president and president-elect, respectively, of the local branch of the National Education Association, and at about this time there had been some rather heated bargaining negotiations between the local NEA and the school board. Peters and Epperson were of the firm view that the refusal of the school board to renew their teaching contracts was not really caused by budgetary problems, but on the contrary was in retaliation for the exercise by them of their First Amendment right to free speech in connection with their NEA activities. In any event, Peters and Epperson retained counsel, and asked the board for a hearing. The board, on advice of its counsel, refused this request for a hearing, believing that a teacher was not entitled to a hearing upon the refusal to renew a one-year teaching contract because of budgetary problems. We note that these events transpired prior to Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

It was in this general factual setting that District No. 480 brought a declaratory judgment action in a state court of Kansas against Peters and Epperson, seeking a declaration that, under the terms of the teaching contracts and the state law of Kansas, the District did not have to afford them a hearing. Peters and Epperson caused the declaratory judgment action to be removed to the United States District Court for the District of Kansas. 28 U.S.C. § 1441(b).

At the same time the declaratory judgment action was removed to federal court, Peters and Epperson instituted individual proceedings in the United States District Court for the District of Kansas against the members of the school board for District No. 480, both in their official capacity as school board members, and individually. Jurisdiction was based on 28 U.S.C. §§ 1331 and 1343. The claim, in essence, was that Peters and Epperson had been denied both procedural and substantive due process in that, first, under the Fourteenth Amendment they should have been afforded a hearing before their teaching contracts were finally not renewed, and, second, that though budgetary reasons were assigned as the reason for nonrenewal, in reality their contracts were not renewed because of the exercise by them of their First Amendment right to free speech. These three actions, namely, the District's declaratory judgment action, and the individual actions of Peters and Epperson were consolidated for hearing in the trial court. By stipulation the claim based on abridgment of First Amendment rights was tried first to a jury, such trial taking three weeks. It was agreed that the remaining issues would later be tried to the court, sitting without a jury, on the basis of the record made in the trial of the First Amendment claim.

The jury trial of the First Amendment claim resulted in a verdict for the members of the school board, and judgment to that effect was duly entered. The claim that Peters and Epperson were entitled to a hearing before nonrenewal was later tried to the court, based on the record as made at the jury trial on the First Amendment claim. The trial court held that Peters and Epperson had a sufficient property interest to entitle them to a hearing before any final determination was made not to renew their teaching contracts. However, judgment was entered in favor of the members of the school board sued as individuals, on the ground of a qualified privilege. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) and Bertot v. School Dist. No. 1, Albany County, Wyo., 522 F.2d 1171 (10th Cir. 1975). As concerns the members of the school board sued in their official capacity, the trial court concluded that notwithstanding the fact that Peters and Epperson were not afforded the hearing to which they were entitled, no money judgment for back pay could be entered because of the Eleventh Amendment. The trial court further concluded that under the circumstances, namely, a jury having found that the teaching contracts of both Peters and Epperson were not renewed because of budgetary problems, and not because of the exercise by them of their First Amendment rights, reinstatement was "inappropriate." Accordingly, judgment was entered in favor of the school board members acting in their official capacity.

Peters and Epperson now appeal and urge but two grounds for reversal: (1) The trial court erred in concluding that the Eleventh Amendment precluded the entry of a money judgment; and (2) the trial court erred in concluding that reinstatement was inappropriate.

As indicated, the trial court found that both Peters and Epperson had a sufficient property interest under Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) to entitle them to a pre-termination hearing. The school board has not appealed, and hence it is the law of the case that when the local school board refused to afford them a hearing, Peters and Epperson were denied procedural due process afforded by the Fourteenth Amendment.

Though having found that the constitutional rights of both Peters and Epperson had been thus violated, the trial court denied relief to both teachers. As indicated, the trial court concluded that under the circumstances reinstatement some three years after nonrenewal was inappropriate, and that a money judgment for back pay or consequential damages against the local school board members acting in their official capacity was precluded by the Eleventh Amendment. On appeal, counsel for Peters and Epperson argue that since it has been determined that Peters and Epperson were denied procedural due process when the school board denied them a hearing before termination, reinstatement was required, and that additionally, they were entitled to pay from the date of their termination in 1972 until the date of their reinstatement, plus all consequential damages. We do not agree with this argument, at least not in its entirety, which, in our view, overlooks the fact that a jury has after a three-week trial found that the terminations were in fact necessitated by budgetary reductions and were not prompted by the exercise by Peters and Epperson of their First Amendment right of free speech. To grant Peters and Epperson all that which they now seek, namely, reinstatement, lost pay, and consequential damages, would afford them all the relief they could have obtained had they prevailed in the First Amendment claim, which they did not, and would in practical effect render the three-week trial a nullity. Such would be utterly unrealistic.

Other courts have also been faced with the problem of what to do when several years after a teacher's contract is terminated or not renewed, it is determined upon trial, that the termination or nonrenewal was for good cause, but that nevertheless there was a denial of procedural due process in that the teacher was not afforded a hearing before termination or nonrenewal. See Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975); Zimmerer v. Spencer, 485 F.2d 176 (5th Cir. 1973); and Horton v. Orange County Board of Education, 464 F.2d 536 (4th Cir. 1972). In each of these three illustrative cases reinstatement was held to be inappropriate. In Hostrop the Seventh Circuit pointed out that the "wrong" done the plaintiff school teacher was not the termination, as such, of the teaching contract, for upon trial it had been determined that termination was justified; rather the "wrong" was the deprivation of the teacher's procedural due process right to notice and a hearing. The latter "wrong" was deemed insufficient to justify reinstatement some five years after the teaching contract had been terminated, and in light of the trial court's determination, after trial, that the teacher's termination was for just cause. The trial court in the instant case did not under the circumstances err in holding that reinstatement was inappropriate.

In each of the three cases above cited it was held that the plaintiff teacher, though not entitled to reinstatement, was nonetheless entitled to some form of money judgment for the wrong...