Bignall v. North Idaho College

• Citation: 538 F.2d 243
• Decision Date: 17 June 1976
• Docket Number: No. 74-3228,74-3228
• Parties: Bliss O. BIGNALL, Jr., et ux., Appellants, v. NORTH IDAHO COLLEGE et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 243

538 F.2d 243

Bliss O. BIGNALL, Jr., et ux., Appellants, v. NORTH IDAHO COLLEGE et al., Appellees.

No. 74-3228.

United States Court of Appeals, Ninth Circuit.

June 17, 1976.

Carl Maxey (argued), of Fredrickson, Maxey, Bell & Anderson, Spokane, Wash., for appellants.

W. W. Nixon (argued), and J. T. Knudson (argued), Coeur D'Alene, Idaho, for appellees.

OPINION

HUFSTEDLER and KENNEDY, Circuit Judges, and SWEIGERT, ^* District Judge.

HUFSTEDLER, Circuit Judge:

Bliss O. Bignall and Annette R. Bignall ("Bignalls") brought an action under 42 U.S.C. § 1983 claiming that North Idaho College ("College") had denied Mrs. Bignall procedural and substantive due process when it declined to renew Mrs. Bignall's teaching contract for the 1973-74 academic year. The district court granted judgment for the defendants and the Bignalls appeal.

Mrs. Bignall taught at the College from 1961 to 1973, as a part-time instructor until 1969, and as a full-time instructor thereafter. In November 1972, allegedly responding to a decline in student enrollment, the Board of Trustees ("Board") of the College ordered the College's President, Barry G. Schuler ("Schuler") to cut the faculty by two full-time teaching positions. Mrs. Bignall was one of the two selected for non-renewal, and Schuler notified her by letter on January 10, 1973, that the College would not rehire her for the coming year. The letter stated no reasons for her termination. The Bignalls subsequently wrote to Schuler requesting an explanation and were informed that the Board had mandated that two full-time faculty be cut. When they asked for a hearing before the Board, the Board's attorney replied that the Board considered Mrs. Bignall a probationary employee, and as such she was not entitled to a hearing. The letter did say that if the Bignalls could provide them with evidence showing Mrs. Bignall was tenured, the Board would reconsider its position. The Bignalls took this letter as a rejection of their request and, in June 1973, filed suit in the district court.

The Bignalls alleged that Mrs. Bignall had been denied due process in retaliation for the activities of her husband, a lawyer, in behalf of minority students at the College. These activities were protected under the First Amendment. They requested a preliminary injunction, which the district court denied. At the same time, the court ordered the Board to provide a hearing prior to the start of the 1973-74 academic year. In late August and early September 1973, the Board held hearings, but the Bignalls withdrew when the Board refused to allow them or their counsel access to the confidential personnel files of the other teachers who were considered for non-retention.

The Bignalls returned to the district court, where a trial was had. The court found that Mrs. Bignall was de facto tenured, but that she had waived her right to further administrative due process by improperly terminating the August hearing and that, in any event, the College had declined to renew her contract for valid, nondiscriminatory reasons, not as a result of her husband's activities.

On appeal, the Bignalls contend that they were denied procedural due process because (1) Mrs. Bignall did not receive proper notice and hearing prior to Schuler's decision and (2) the Board of Trustees was a biased panel. They further say that the College violated its own tenure policy by not showing a "demonstrable financial exigency" when it terminated Mrs. Bignall. They do not challenge the district judge's holding on the lack of a First Amendment violation.

Due process is a flexible, pragmatic concept. (Goss v. Lopez (1975) 419 U.S. 565, 578, 95 S.Ct. 729, 42 L.Ed.2d 725.) Its contours are specified by a balance among various factors:

"first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Mathews v. Eldridge, --- U.S. ----, ----, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (44 U.S.L.W. 4224, 4229 (1976)).)

(See generally Note, "Specifying the Procedures Required by Due Process: Towards Limits on Interest Balancing," 88 Harv.L.Rev. 1510 (1975).) Moreover, the component parts of the process are not unrelated (Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267 (1975)): the goal of the procedures is to reach a substantively correct result at a minimum of cost. More elaborate procedures at one stage may compensate for deficiencies at other stages. (Cf. Mathews v. Eldridge, supra; Arnett v. Kennedy (1974) 416 U.S. 134, 187, 195-96, 94 S.Ct. 1633, 40 L.Ed.2d 15.)

A de facto tenured faculty member has a right to notice, and "a hearing, at (her) request, where (she) could be informed of the grounds for (her) nonretention and challenge their sufficiency." (Perry v. Sindermann (1972) 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570.) Far from requiring that this hearing precede the decision not to rehire the employee, the cases only mandate that the hearing be granted "at a meaningful time and in a meaningful manner." (Armstrong v. Manzo (1965) 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62.) This usually means before the discharge becomes effective, but it can mean after the termination, if there is an adequate procedure for redress. (See Mathews v. Eldridge, supra; Arnett v. Kennedy, supra.)

The Bignalls assert Perry v. Sindermann and its progeny mean that Mrs. Bignall had a right to notice and a hearing before Schuler had decided that she was one of the two faculty not to be rehired. Recently, the Courts of Appeals for the Third and Fourth Circuits have decided this precise issue adversely to the Bignalls. (Chung v. Park (3d Cir. 1975) 514 F.2d 382; Vance v. Chester County Board of School Trustees (4th Cir. 1974) 504 F.2d 820.) The plaintiff in Chung v. Park attempted what the Bignalls here attempt: by arbitrarily defining the time the decision to terminate is made as the time termination occurs, he sought to manufacture a constitutional requirement for a pre-decision hearing but,

"a pre-termination hearing is not a hearing held prior to any decision to terminate, as Dr. Chung suggests, but rather a hearing held prior to a termination of benefits . . . In the present case, any hearing held prior to the end of the academic year would be a pre-termination hearing." (514 F.2d at 386 n.7.)

We agree with the Third and Fourth Circuits. The instructor has not been denied due process while still employed at the same job and while adequate procedures remain to challenge and forestall the non-retention. ¹

The College afforded the Bignalls a hearing but they chose prematurely to withdraw from it and return to the district court. The plaintiff in a section 1983 suit usually does not need to exhaust either state judicial or administrative remedies. (Ellis v. Dyson (1975) 421 U.S. 426, 432-33, 95 S.Ct. 1691, 44 L.Ed.2d 274 (dictum); Monroe v. Pape (1961) 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492; Hochman v. Board of Education (3d Cir. 1976) 534 F.2d 1094.) But we have held that where an adequate "administrative remedy . . . was not designed to be remedial, . . . (but) (i)nstead, . . . provide(s) a means of forestalling a threatened future deprivation of civil rights," the plaintiff must run the procedural gauntlet. (Whitner v. Davis (9th Cir. 1969) 410 F.2d 24, 28. See also Toney v. Reagan (9th Cir. 1972) 467 F.2d 953; cf. Canton v. Spokane School District No. 81 (9th Cir. 1974) 498 F.2d 840; Parker v. Letson (N.D.Ga.1974) 380 F.Supp. 280.) ²

When the Bignalls unilaterally halted the hearing, they aborted the decision-making process. ³ The hearing could have resolved the controversy, and given the district court, whose review would not normally be de novo, a full record to evaluate. The College violated the Bignalls' procedural rights only if it offered an inadequate hearing. If the suggested procedure would have been adequate, the Bignalls cannot state a claim under the Civil Rights Act for a denial of their procedural rights when they themselves elected to forego a complete hearing. (Whitner v. Davis, supra; Hayes v. Cape Henlopen School District (D.Del.1972) 341 F.Supp. 823.)

The Bignalls assert, in effect, that the procedure was inadequate both because the notice they received insufficiently specified why Mrs. Bignall was to be terminated and because the Board was biased since it had ordered the cut and it was concerned with the financial operation of the College.

The Bignalls have given us no facts which show the prejudice of this Board; they assume that any board in a like position would be biased and that the hearing is constitutionally inadequate as a matter of law. The cases do not support this position. While the risk of error with a biased hearing panel is obvious, courts have balanced the need for an objective decision-maker against the costs of employing outside people, administrative efficiency and the body's having some expertise in institutional structure. (Simard v. Board of Education (2d Cir. 1973) 473 F.2d 988, 992; Ferguson v. Thomas (5th Cir. 1970) 430 F.2d 852, 856 ("hearing should be before a tribunal that both possesses some academic expertise and has an apparent impartiality toward the charges.").) Thus, courts have often allowed Boards of Education or college boards of trustees to hold hearings about firings of faculty by administrators. (Brubaker v. Board of Education (7th Cir. 1974) 502 F.2d 973; Swab v. Cedar Rapids Community School District (8th Cir. 1974) 494 F.2d 353; Simard v. Board of Education, supra; Vance v. Chester County Board of School Trustees, supra; Ferguson v. Thomas, supra.); Cf. Hortonville Joint School District No. 1 v....