Brown v. Bathke, 76-2073

• Decision Date: 10 November 1977
• Docket Number: No. 76-2073,76-2073
• Citation: 566 F.2d 588
• Parties: 16 Empl. Prac. Dec. P 8179 Barbara Jean BROWN, Appellant, v. Robert BATHKE, as Principal of Monroe Junior High School, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 588

566 F.2d 588

16 Empl. Prac. Dec. P 8179

Barbara Jean BROWN, Appellant, v. Robert BATHKE, as Principal of Monroe Junior High School, et al., Appellees.

No. 76-2073.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1977.

Decided Nov. 10, 1977.

Clyde A. Christian, Shrout, Christian, Krieger, Nestle & Palagi, Omaha, Neb., made argument, filed appearance and briefs for appellant.

Alex M. Clarke, Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, Neb., made argument, filed appearance and brief for appellees.

Before MATTHES, Senior Circuit Judge, BRIGHT, Circuit Judge, and MILLER, Judge. ^*

BRIGHT, Circuit Judge.

Barbara Jean Brown, a former teacher at Monroe Junior High School in Omaha, Nebraska, brought this action against the principal of the school, the superintendent, the assistant superintendent, and the members of the Board of Education of the School District of Omaha to redress the termination of her teaching contract prior to the end of the school year, after the Board members discovered that Ms. Brown, a single woman, had become pregnant. She asserted a cause of action under 42 U.S.C. § 1983, claiming a deprivation of her constitutional rights under color of state law, and sought declaratory, injunctive, and other equitable relief and damages. Jurisdiction was invoked under 28 U.S.C. § 1331 and § 1343. The federal district court, in a decision reported at 416 F.Supp. 1194 (D.Neb.1976), denied Ms. Brown relief and she appeals. For reasons stated below, we hold that Ms. Brown was entitled to some relief, and we remand for further proceedings.

The Omaha Board of Education employed Barbara Jean Brown as a junior high school teacher under a one-year contract covering the full 1972-1973 school year. Ms. Brown's status was that of a probationary teacher, and the Board retained the prerogative of renewing or not renewing her contract at its option by voting to terminate the contract at any time prior to April 1 of any school year. Neb.Rev.Stat. § 79-1256 (1976).

In January 1973, the Board notified Ms. Brown that it had not yet received an official copy of her college transcript and that failure to provide one could result in nonrenewal of her contract. Because she had not furnished the transcript by March 26, 1973, when the Board voted on contract renewals for the following year, the Board omitted her name from the list of probationary teachers re-elected for the 1973-1974 school year and notified her, by letter dated March 27, 1973, that her employment would be terminated on June 8. Although she furnished the transcript a few days later, the Board did not reconsider its earlier action.

Dr. Robert Bathke, the principal of Monroe, learned from unidentified sources in April 1973, that Ms. Brown, a single woman, had become pregnant. In a conference on April 4, 1973, with Dr. Bathke and Dr. Ron Anderson, assistant superintendent for Staff Personnel Services, Ms. Brown confirmed her pregnancy, then in the seventh month. Dr. Anderson immediately suspended Ms. Brown with pay, pending a decision by the Board of Education. Dr. Anderson told her she was entitled to a hearing, but failed to inform her that the hearing was contingent on her request. She made no request for a hearing.

At a regular meeting on May 7, 1973, the Board voted to terminate her employment effective April 10, 1973. Ms. Brown was not present at the meeting and had not been informed that it would be held.

On July 10, 1973, Ms. Brown filed a charge of sex discrimination with the Nebraska Equal Opportunity Commission (NEOC), which ruled in her favor after a public hearing. Upon appeal by the Board of Education, the District Court of Douglas County, Nebraska, ruled on August 13, 1975, that Ms. Brown had been denied a pre-termination hearing and remanded the cause to the Board directing it to provide a hearing for Ms. Brown. At the court-ordered hearing held on September 17, 1975, more than two years after her discharge, a psychiatrist and a professor of education testified that a teacher serves as a "role model" to her students and that students at an impressionable age may be highly influenced by the teacher's behavior and ideas. Following the hearing, the Board voted to confirm its earlier action terminating Ms. Brown's employment. Upon reconsideration of the cause following this hearing, the Douglas County District Court reversed the NEOC's finding of sex discrimination. Ms. Brown took no appeal to the Nebraska Supreme Court.

On May 23, 1975, Ms. Brown filed the present action in federal district court alleging that the defendants' conduct had deprived her of property without due process of law and of her rights to privacy and equal protection of the law. She also challenged, on the ground of vagueness, the constitutionality of Neb.Rev.Stat. § 79-1260(5) (1976), which was offered by the Board as its authority for terminating Ms. Brown's contract. That statute authorizes a school board to terminate the contract of a tenured teacher's contract for "immorality."

The federal district court in an unpublished opinion denied Ms. Brown relief, reaching the following conclusions: (1) that Ms. Brown possessed a property right in her employment during the term of her contract, triggering the Due Process Clause of the fourteenth amendment; (2) that the Board failed to provide her with a pre-termination hearing but cured any due process defects by providing a post-termination hearing; (3) that she possessed no reasonable expectation of employment and, therefore, no property right beyond the term of her contract; (4) that the Board's action bore a rational relationship to a legitimate educational function and therefore did not deny her equal protection of the law; (5) that the board's action did not unlawfully invade Ms. Brown's rights to privacy and association; and (6) that defendants, having acted in good faith, incurred no liability to Ms. Brown for any money damages for failure to afford her a pre-termination hearing. The district court also determined that the contract termination statute, section 79-1260(5), did not apply to a teacher with an untenured status. The district court, therefore, did not reach the constitutionality of that section of the Nebraska law.

On this appeal, appellant Brown renews her attack on that statute asserting that the Board relied on an unconstitutional statute in the discharge. She further contends that the Board's policy and action in discharging her violated her constitutional right to substantive due process by creating an irrebuttable presumption that unwed pregnancy constitutes immoral conduct, violated her right of personal privacy and equal protection, and constituted unlawful and unconstitutional discrimination based on her sex.

We agree with the district court that section 79-1260(5) is immaterial to the present action. In a letter dated April 12, 1973, Dr. Anderson informed Ms. Brown that he would recommend termination of her contract because her pregnancy "cannot be viewed as appropriate moral conduct for a member of our professional staff." The NEOC, in investigating the sex discrimination charge, asked the Board for a copy of its policy on immoral conduct. In response, the Board submitted a copy of section 79-1260. In a brief submitted to the NEOC, the Board stated that, although section 79-1260 applies only to tenured teachers,

the grounds for a mid-year termination of a probationary teacher are the same as those set forth in Section 79-1260, for the termination of a tenured teacher.

As the litigation progressed, the Board further clarified its reasoning. It now appears that the Board's concern is not with the morality of Ms. Brown's conduct, but rather with her relationship with students and parents. At the trial before the federal district court, Dr. Anderson testified:

(A) part of our obligation and responsibility to this community, the parents and the youngsters, is to have the best teachers we can find; teachers who will present what we feel is the right image and example to youngsters under their direction.

We feel, of course, that the schools do have a responsibility * * * sustaining the value system as accepted in society and maybe bolstering it in areas where there is some weakness.

The Board dismissed Ms. Brown because they felt the presence of an obviously pregnant, unmarried teacher in the classroom would be a harmful influence on the students. Regardless of the merits of this reasoning, the Board in confirming Ms. Brown's discharge following the 1975 hearing focused upon Ms. Brown's likely relationship with her students in light of her pregnant condition, not upon any alleged immorality. Because the Board does not now rely on the statute as the grounds for dismissal, we need not reach the issue of its alleged vagueness.

We now turn to the challenges to the termination of Ms. Brown's employment. While the Board was free to terminate her employment without cause at the end of her contract period, Neb.Rev.Stat. § 79-1256 (1976), it could not do so for a constitutionally impermissible reason. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); see Frazier v. Curators of the University of Missouri, 495 F.2d 1149 (8th Cir. 1974). Ms. Brown argues that but for her pregnancy the Board would have renewed her contract when she eventually furnished the transcript. By basing the nonrenewal on her pregnancy, she argues, the Board violated her rights to privacy, freedom of association, and equal protection. We do not agree with this theory. When the Board voted to terminate the contract, it had already informed Ms. Brown that her contract would not be renewed for the following year because of her failure to provide a college transcript as required by state law. This was a legitimate reason unrelated to her pregnancy. This situation presents a question of causation similar to that addressed by the Supreme Court in Mt. Healthy City School...