Buhr v. Buffalo School District No. 39, Civ. No. 4853.

• Decision Date: 19 October 1973
• Docket Number: Civ. No. 4853.
• Citation: 364 F. Supp. 1225
• Parties: Dolores BUHR, Plaintiff, v. BUFFALO SCHOOL DISTRICT NO. 39, a public corporation, et al., Defendants.
• Court: U.S. District Court — District of South Dakota

364 F. Supp. 1225

Dolores BUHR, Plaintiff, v. BUFFALO SCHOOL DISTRICT NO. 39, a public corporation, et al., Defendants.

Civ. No. 4853.

United States District Court, D. North Dakota, Southeastern Division.

October 19, 1973.

Daniel J. Chapman, Rausch & Chapman, Bismarck, N. D., for plaintiff.

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

MEMORANDUM OF DECISION

BENSON, Chief Judge.

Plaintiff Dolores Buhr was not granted a renewal contract to teach at the Buffalo School. She brings this action against the Defendant School District and the members thereof, individually, for their refusal to issue the renewal contract. Plaintiff alleges her civil rights were violated under color of state law, in violation of 42 U.S.C. § 1983.

FACTS

Briefly, the facts are as follows:

Plaintiff was employed at the Buffalo School for the 1972-1973 academic year. She had been continuously employed by the Buffalo School District for a period of seven years. On March 13, 1973, the School Board of Defendant School District passed a motion to send plaintiff a letter, indicating a contemplated nonrenewal of her contract. The letter was sent to plaintiff, with no reasons explaining the action of the School Board. Upon Plaintiff's request, the Board met with Plaintiff and her representative in executive session on March 20. No transcript, minutes, or records were made of this meeting, but the participants did discuss the reasons why the School Board contemplated not renewing the Plaintiff's contract. At a meeting on March 29, the Board determined that it would not renew her contract, and advised Plaintiff of its action by letter. Again, no reasons for its actions were included in the letter. There is no disagreement between the parties as to what the reasons were that were given at the executive session, and this Court finds those reasons relate to the educational process and to the working relationship within the educational institution, and do not amount to a deprivation of Plaintiff's civil rights.

ISSUES

Plaintiff alleges, in substance:

1. The reasons for termination of employment given to her at the executive session were not substantiated by evidence, and were false and malicious.

2. In being denied the opportunity to confront witnesses making the charges against her, cross-examining them and presenting witnesses in her own behalf, she was denied due process of law.

3. The false and malicious charges have affected her good name and reputation and deprived her of the freedom to take advantage of other employment offers, which represents a loss of liberty without due process.

4. Under the applicable North Dakota statute (§ 15-47-27 North Dakota Century Code), and in the absence of the Defendants' arbitrary and capricious action, her employment would have automatically been renewed, and she has thereby been deprived of property without due process.

Defendant has moved for summary judgment, pursuant to Rule 56, Federal Rules of Civil Procedure.

OPINION

Initially, it must be noted that a school district is not a "person" within the meaning of 42 U.S.C. § 1983. Kerr v. Clarenceville School District of Oakland and Wayne Counties, 344 F.Supp. 1244 (E.D.Mich.1972). However, the Plaintiff has also named the individual members of the School Board as Defendants.

The North Dakota statute concerning nonrenewal of teacher contracts, N.D.C. C. § 15-47-38 (1967), has been recently construed by the North Dakota Supreme Court in Hennessy v. Grand Forks School District # 1, 206 N.W.2d 876 (N.D.1973). The actions of the defendants in this case were in compliance with the procedures approved in Hennessy and outlined as follows:

"Under our law a teacher is not granted tenure rights nor are there any statutes defining standards for re-employment . . .. Our law leaves the decision of whether to rehire a teacher for the ensuing year entirely to the discretion of the school board. . . . Under this statute, in order not to rehire a teacher, all a school board need do is notify the teacher in writing, between the 15th day of February and the 15th day of April in the school year, of the board's determination not to renew the teacher's contract."

"In 1967 our legislature added the requirements provided by Section 15-47-38, N.D.C.C. . . . This statute . . . adds a requirement preliminary the executive session to the non-renewal of a teacher's contract not theretofore provided by statute. . . . It does not provide for a hearing and clearly does not envision an evidentiary proceeding. . . .

"Section 15-47-38, N.D.C.C., specifically provides that the meeting shall be an executive session of the board unless both the school board and the teacher requesting such meeting shall agree that it is open to other persons or the public. This section allows the teacher to be represented at the meeting by a person of her own choosing. . . . The statute contemplates an informal meeting at which the school board `shall give an explanation and shall discuss * * * its reasons for the contemplated decision'. . . . The statute does not envision a hearing at which witnesses may testify . . . ." at 881, 882.

"This state has no statute which requires that the school board must have cause to refuse to renew a teacher's contract." at 883. (Emphasis added).

There is no factual dispute as to the procedure that was followed in the case before this Court, and it is clear that the requirements of N.D.C.C. § 15-47-38 were met. The question is whether those procedures, as applied to the facts in this case, violated the Plaintiff's due process rights. The Defendants' position is that they did not, and rely on Hennessy and Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Hennessy is quite explicit in stating no due process requirements exist under North Dakota State law in contract nonrenewal cases. Plaintiff asserts that § 15-47-38 requires reasons to be given, "and these reasons . . . deprive the plaintiff of liberty as set out in Roth if no hearing is provided in connection therewith." This argument relies upon the following language in § 15-47-38(2):

"Such teacher shall be informed in writing that he may request and appear at a meeting to be held by the school board prior to the final decision of such teacher's discharge or failure to renew such teacher's contract. The school board shall give an explanation and shall discuss at such meeting its reasons for the contemplated decision of the board in discharging such teacher or refusing to renew the teaching contract of the teacher. The meeting shall be an executive session of the board unless both the school board and the teacher requesting such meeting shall agree that it shall be open to other person or the public."

Roth held the 14th Amendment does not require an opportunity for a hearing prior to nonrenewal of a non tenured state teacher contract unless the teacher can show that the nonrenewal deprived the teacher of an interest in "liberty" or that the teacher had a "property" interest in continued employment despite the lack of tenure or a formal contract.

In his concurring opinion, Chief Justice Burger emphasized that the court in Roth decided that "whether a particular teacher in a particular context has any right to such administrative hearing hinges on a question of state law"., at 604, 92 S.Ct. at 2717.

The state law in North Dakota, as interpreted by Hennessy, clearly does not require an administrative hearing, but Plaintiff would have this court extend Hennessy and Roth to hold that once the Plaintiff had requested the executive meeting and the discussion of "reasons", the...