Buhr v. Buffalo Public School Dist. No. 38

• Decision Date: 13 February 1975
• Docket Number: No. 73--1851,73--1851
• Citation: 509 F.2d 1196
• Parties: Dolores BUHR, Appellant, v. BUFFALO PUBLIC SCHOOL DISTRICT NO. 38 et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1196

509 F.2d 1196

Dolores BUHR, Appellant, v. BUFFALO PUBLIC SCHOOL DISTRICT NO. 38 et al., Appellees.

No. 73--1851.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1974.

Decided Dec. 31, 1974.

Rehearing and Rehearing En Banc

Denied Feb. 13, 1975.

David Rubin, Washington, D.C., for appellant.

John D. Kelly, Wattam, Vogel, Vogel & Peterson, Fargo, N.D., for appellees.

Before GIBSON, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and WEBSTER, Circuit Judge.

WEBSTER, Circuit Judge.

In this case we are asked to review the termination of employment of Dolores Buhr, a fifth grade teacher in the Buffalo Public School District No. 38 in North Dakota. Ms. Buhr had been a nontenured teacher for seven years, ¹ and each year her employment contract had been presented to the school board for renewal. In March, 1973, the school board notified her of its contemplated nonrenewal of her contract. This notification contained no reasons for the proposed discharge but indicated, as required by state law, that she could appear at a meeting of the board to discuss the matter. ² She alleges that, at that closed meeting with the board, she was informed that the reasons for the contemplated action were the charges by certain persons that 'she was the cause of certain emotional and nervous stress and tension on the part of some of the students.'

Nine days later, Mr. Buhr was notified by letter that the school board had reached a decision not to renew her contract. She thereupon filed a civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of her Fourteenth Amendment rights to both procedural and substantive due process of law. ³ The defendant school district and school officials moved for summary judgment dismissing the complaint, which was granted by the Honorable Paul Benson, whose supporting memorandum of decision appears at 364 F.Supp. 1225 (D.N.D.1973). We affirm for the following reasons:

1. Procedural Due Process Claims.

The pivotal cases in the resolution of Ms. Buhr's procedural due process claims are Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (hereinafter Roth), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (hereinafter Sindermann). Equally significant are the Supreme Court's recent statements in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (opinion of Rehnquist, J., in which Burger, C.J., and Stewart, J., joined).

Under Roth and Sindermann, a state or public school teacher who is not formally tenured is entitled to procedural due process of law upon termination only if that termination deprives the teacher of an interest in liberty or an interest in property. Deprivation of an interest in liberty occurs where nonretention of the teacher imposes upon him a stigma or other disability foreclosing his future employment opportunities or resulting in significant damage to his standing and associations in the community. Adequate notice of the reasons for nonretention and an opportunity to rebut those charges are required under such circumstances. Roth, supra, 408 U.S. at 573, 92 S.Ct. 2701. Procedural due process is likewise required where the teacher whose dismissal is being contemplated, while not formally tenured, has held his job pursuant to a de facto tenure policy under which he had a legitimate claim to continued employment and thus a 'property interest' therein. Roth, supra, 408 U.S. at 576--578, 92 S.Ct. 2701; Sindermann, supra, 408 U.S. at 599--603, 92 S.Ct. 2694.

Invoking this analytical framework, Ms. Buhr first contends that her nonrenewal for the reasons cited at the executive meeting of the school board deprived her of an interest in liberty by foreclosing future employment opportunities in her chosen profession. She argues that being named as the cause of certain students' nervous tensions not only imposed a stigma on her professional record but also injured her standing in the small community in which she lives.

We cannot accept this argument under the factual circumstances of this particular case. Clearly, nonrenewal standing alone does not constitute the deprivation of an interest in liberty. Roth, supra, 408 U.S. at 574 n. 13, 92 S.Ct. 2701; Arnett v. Kennedy, supra, 416 U.S. at 157, 94 S.Ct. 1633; Calvin v. Rupp, 471 F.2d 1346 (8th Cir. 1973). On the other hand, where reasons for nonrenewal are announced publicly or are incorporated into a record made available to prospective employers, such reasons may indeed affect the dischargee's chances of securing another job. See Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir. 1973); cf. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). In the instant case, the reasons for nonrenewal were never publicized. Ms. Buhr was confidentially informed of the reasons only upon her request and then only at a closed meeting of the school board. The confidential nature of these charges was respected even during the trial court proceedings, and we note that Judge Benson made no explicit reference thereto in his summary judgment order and memorandum. See 364 F.Supp. at 1228 n. 1. We fail to discover any suggestion in the undisputed facts contained in the record that the defendants prejudiced Ms. Buhr's ability to secure another teaching position.

Nor can we accept Ms. Buhr's contention that she was entitled to procedural due process as a result of her 'property interest' in continued employment. See Roth, supra; Sindermann, supra. North Dakota teachers do not work under any formal tenure system. Dathe v. Wildrose School District No. 91, 217 N.W.2d 781 (N.D.1974); Hennessy v. Grand Forks School District No. 1, 206 N.W.2d 876 (N.D.1973). Appellant concedes this point but argues that the state affords its teachers continuous job security through statutory provisions recognizing 'the need to * * * retain qualified teachers', N.D.C.C. § 15--47--38(1) (1971), and guaranteeing automatic renewal of each teacher's yearly contract absent affirmative action by the school board, N.D.C.C. § 15--47--27 (1971). Yet it is clear that those same statutory provisions, which outline the procedures for terminating a teacher's employment, do not provide for full-dress procedural due process. Dathe v. Wildrose School District No. 91, supra; Hennessy v. Grand Forks School District No. 1, supra. Where, as here, the only 'grant of a substantive right (to continued employment) is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant (challenging the termination of employment) must take the bitter with the sweet.' Arnett v. Kennedy, supra, 416 U.S. at 153--154, 94 S.Ct. at 1644. Because Ms. Buhr's only 'property interest' in re-employment 'was itself conditioned by the procedural limitations which had accompanied the grant of that interest,' 416 U.S. at 155, 94 S.Ct. at 1645, there is no merit to her claimed right to full procedural due process.

2. Substantive Due Process Claims.

Ms. Buhr's final contention, separate and apart from her procedural due process claims, is that she was denied substantive due process of law because the reasons cited by the school board for her nonretention were totally unsupported by factual evidence. For purposes of review, '(w)e look at the record on summary judgment in the light most favorable to * * * the party opposing the motion,' Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), and 'the inferences to be drawn from the underlying facts contained in (the record) must be viewed in the light most favorable to the party opposing the motion,' United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Assuming, therefore, for purposes of this appeal, that the reasons for Ms. Buhr's nonretention did indeed lack factual support, we proceed to an analysis of her constitutional claims.

'The claim that a person is entitled to 'substantive due process' means * * * that state action which deprives him of life, liberty, or property must have a rational basis--that is to say, the reason for the deprivation may not be so inadequate that the judiciary will characterize it as 'arbitrary." Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, 3--4 (7th Cir. 1974). The concept of substantive due process, so defined, has had a long and tortuous history in the federal courts. As was observed in North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973), the United States Supreme Court once expressly espoused the concept and actively employed it to strike down state action 'which a majority of the Court deemed unwise,' 414 U.S. at 164, 94 S.Ct. at 412. See, e.g., Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915); Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908); Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). Although analysis of recent opinions has led some commentators to conclude that substantive due process still plays a significant, albeit tacit, role in the Supreme Court's decisions, see Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv.L.Rev. 1 (1973); Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 Sup.Ct.Rev. 159; cf. Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv.L.Rev. 1534 (1974), the Court itself has expressly repudiated the use of substantive due process as a vehicle for intervening in choices properly left within the discretion of state officials. E.g., North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., supra; Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); cf. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 53--55, 93 S.Ct. 1278, 36 L.Ed.2d 16 ...