706 F.2d 1435 (7th Cir. 1983), 82-1202, Vail v. Board of Educ. of Paris Union School Dist. No. 95

Docket Nº:82-1202.
Citation:706 F.2d 1435
Party Name:Jesse A. VAIL, Plaintiff-Appellee, v. BOARD OF EDUCATION OF PARIS UNION SCHOOL DISTRICT NO. 95, Terrance C. Parks, Charles R. Fox and Bernie Rinehart, Defendants-Appellants.
Case Date:April 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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706 F.2d 1435 (7th Cir. 1983)

Jesse A. VAIL, Plaintiff-Appellee,



Terrance C. Parks, Charles R. Fox and Bernie

Rinehart, Defendants-Appellants.

No. 82-1202.

United States Court of Appeals, Seventh Circuit

April 19, 1983

Argued Nov. 4, 1982.

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Thomas R. Miller, Miller & Tracy, Monticello, Ill., for defendants-appellants.

Marc J. Ansel, Champaign, Ill., for plaintiff-appellee.

Before WOOD, ESCHBACH and POSNER, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

In this Sec. 1983 action this court must once again address the meaning of "property" as used in the Due Process Clause. The district court in a bench trial awarded $19,850.99 in damages for the unlawful termination of the plaintiff-appellee from a position in the school system of Paris, Illinois. We affirm.


This case arose because of the efforts of the Board of Education of Paris Union School District No. 95 (Board) to secure the services of the plaintiff-appellee Jesse A. Vail (Vail) as an athletic director and football coach. At the time the Board sought his services Vail was employed as supervisor of recreation and physical education for the Stateville Correctional Center in Joliet, Illinois.

On June 15, 1980 a search committee for the Board traveled to Joliet. They held a breakfast meeting with Vail, visited his place of employment, and later met with Vail in his home. In addition to talking about the nature of the job duties and the salary, discussion between the search committee and Vail centered on job security and the length of the term of the proposed contract.

Vail was concerned about the amount of time necessary to correct deficiencies that existed in the athletic program in Paris as well as giving up his job at Stateville. In response to these concerns the committee stated that the length of the term of the contract was a matter to be determined by the full Board and that the committee itself could make no commitment beyond one year.

According to the findings of fact, on June 24, 1980 the Board met in special session to consider hiring Vail. At that meeting the Board unanimously agreed to offer Vail a contract of employment as athletic director and football coach. It was the consensus of the Board that it would assure Vail of two years in that position.

The Board instructed Dr. James Cherry, the superintendent, to convey an offer to Vail and to explain the Board's intention to renew the one-year contract at the end of the first year. Vail was informed of the offer and told that while the Board could not offer him more than a one year contract, it could assure him of extending the contract for a second year. Vail accepted, traveled to Paris to execute a written contract, and subsequently assumed the duties of athletic director and football coach.

On March 2, 1981 the Board met in public session and voted not to renew Vail's contract for the ensuing year. Vail was not given any explanation as to the reason for his termination, nor was he given any sort of a hearing.

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On these findings of fact the district court held that Vail had a constitutionally protected property interest in his continued employment with the Board. Citing Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the court held that the Board acting under color of state law had deprived Vail of property without due process of law and awarded $19,850.99 in stipulated damages.

The Board's principal argument on appeal is that the district court erred in concluding that Vail had any constitutionally sufficient property interest to state a claim under 42 U.S.C. Sec. 1983. The Board contends that Vail had no more than a mere subjective expectation of continued employment and his sole rights as a new teacher are governed by Illinois law which only requires the Board to give 60 days notice before the end of a school term of its decision to terminate. 1

The nature of property interests to be protected by the Due Process Clause of the Constitution has been addressed in many contexts by the Supreme Court. Most relevant to the present case are a pair of cases where the Court assessed the property interests of two state university professors each terminated at the end of a one-year contract without a hearing. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Court held that a teacher terminated after one year had no property interest in his continued employment where his unilateral expectations had no basis in statute, contract, or mutually explicit understanding with the university. Id. at 578, 92 S.Ct. at 2709. In the companion case, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the plaintiff had been terminated after having worked for a number of years under a series of one-year contracts. Here the Court found a property interest in continued employment that had been fostered by the rules and the policy of the university, despite the lack of tenure or a contractual provision. Id. at 599-601, 92 S.Ct. at 2698-2699.

In defining the nature of a protected property interest Justice Stewart stated in Sindermann:

We have made clear in Roth, that "property" interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather "property" denotes a broad range of interests that are secured by "existing rules or understandings." A person's interest in a benefit is a "property" interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.

408 U.S. at 601, 92 S.Ct. at 2699 (citations omitted). Justice Stewart went on to state that the "existing rules or understandings" need not be a formal tenure system or even an explicit contractual provision, citing implied contracts as sufficient to constitute a protected property interest. Id. at 601-02, 92 S.Ct. at 2699-2700. See also Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971) (applying due process to teacher without tenure or a formal contract but with a clearly implied promise of continuing employment).

Sindermann does not turn on the implied contractual provision being one of tenure. The case law clearly establishes that a property interest can be created through a statutory entitlement, the operation of institutional common law, or through principles of contract law. In addition to Sindermann the Supreme Court has stated explicitly: "A property interest in employment can, of course, be created by ordinance or by an implied contract." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Accord, Jago v. Van Curen, 454 U.S. 14, 18-19, 102 S.Ct. 31, 34-35, 70 L.Ed.2d 13 (1981) (per curiam ); Leis v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698, 700,

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58 L.Ed.2d 717 (1979) (per curiam ). It is the binding nature of the contract rather than its length which is significant. This circuit has also stated rather bluntly: "A term of employment set by contract has been recognized as a property interest which the state cannot extinguish without conforming to the dictates of procedural due process." Hostrop v. Board of Junior College District No. 515, 471 F.2d 488, 494 (7th Cir.1972), cert. denied, 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d 688 (1973). Accord, Adams v. Walker, 492 F.2d 1003 (7th Cir.1974).

In this case we deal with the unlawful termination of a government employee, not some other matter of state business, a subject which the Supreme Court repeatedly has held to implicate constitutional rights under both the "property" and the "liberty" interests protected by the Due Process Clause. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Roth, supra; Sindermann, 408 U.S. at 597, 92 S.Ct. at 2697 and cases cited therein; Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895, 1904, 48 L.Ed.2d 495 (1976) (liberty interest in obtaining government employment). When the government acts as employer, the application of the Due Process Clause protects the individual from arbitrary and capricious conduct and legitimizes governmental action when exercised through proper channels.

Vail had a two-year employment promise rather than a commitment for indefinite employment, as in the case of tenure. The length of time that an individual retains an asset affects the weight or value of the interest, but not the nature of the interest. Had Vail been successful in rebuilding the school's athletic program to the school's satisfaction, as no doubt all parties hopefully anticipated, Vail would have benefited after two years from statutory tenure, as do other teachers. Athletic directors and coaches are generally not regarded as second class members of a balanced school program. Roth, 408 U.S. at 570-71, 92 S.Ct. at 2705-06. We affirm the finding that the Board deprived Vail of his legitimate expectation of continued employment in terminating him without cause before the expiration of his employment period, and that such deprivation is a violation of due process and actionable under the Civil Rights Act.

The Board argues that under Illinois law there was no evidence of an implied employment contract for two years. Under Illinois law, an implied contract is proven by circumstances showing that the parties intended to contract or by facts and circumstances from which a meeting of the minds can be inferred. See generally, 12 Illinois Law & Practice Contracts Sec. 4 (1982); United States ex rel. J.C. Schaefer Electric, Inc. v. O. Frank Heinz...

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