Calvin v. Rupp, 72-1009.

• Decision Date: 08 January 1973
• Docket Number: No. 72-1009.,72-1009.
• Parties: Wilmer K. CALVIN, Jr., Appellant, v. Roy RUPP, etc., et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

471 F.2d 1346 (1973)

Wilmer K. CALVIN, Jr., Appellant, v. Roy RUPP, etc., et al., Appellees.

No. 72-1009.

United States Court of Appeals, Eighth Circuit.

Submitted November 13, 1972.

Decided January 8, 1973.

Robert C. Smith, Columbia, Mo., for appellant.

David Collins, Macon, Mo., for appellees.

Before MATTHES, Chief Judge, MEHAFFY, Circuit Judge, and VAN PELT, Senior District Judge.^*

MEHAFFY, Circuit Judge.

During the school year 1968-69 Wilmer K. Calvin, Jr., hereinafter referred to as plaintiff, was employed as a high school teacher in the Brookfield, Missouri R-II public school district. On April 1, 1969 plaintiff's notice of reemployment for the school year 1969-70 was revoked. Shortly thereafter plaintiff brought an action in the United States District Court for the Eastern District of Missouri against the school board members, the superintendent of schools and the principal of the school in which plaintiff taught seeking, inter alia, reinstatement in his teaching position. As grounds for such relief plaintiff alleged that his non-reemployment had deprived him of his substantive and procedural due process rights. The district court, with The Honorable John K. Regan presiding, denied plaintiff's claim. Calvin v. Rupp, 334 F.Supp. 358 (E.D.Mo.1971). For the reasons stated below we affirm the judgment of the district court.

The factual background of this case is described in detail in the district court's opinion. We have therefore refrained from discussion of the facts except where they are relevant to our analysis.

There are two distinct issues presented in this appeal. First, we must consider whether or not plaintiff was entitled to some sort of pre-termination proceeding which was not afforded him. Second, we must decide whether or not the defendants' decision not to reemploy plaintiff was based on constitutionally impermissible reasons. In facing these issues we are guided by the recent Supreme Court decisions of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2717, 33 L.Ed.2d 581 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Procedural Due Process.

As construed in Perry and Roth, the procedural requirements of the due process clause do not apply to a public school teacher's termination (or non-reemployment) at all unless the termination deprives the teacher of either a property interest or a constitutionally cognizable liberty. Plaintiff claims that the defendants' decision to revoke his notice of reemployment deprived him of both liberty and property as those terms are used in the fourteenth amendment. The liberty which plaintiff claims he has lost is his "freedom to take advantage of other employment opportunities." The property interest allegedly involved is the expectancy of reemployment that arose when plaintiff first received his notice of reemployment. We have concluded that neither of these interests is of a nature that would make the procedural requirements of the due process clause applicable.

The freedom to take advantage of other employment opportunities is, of course, an interest that can rise to constitutional proportions. E. g., Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). The only injury plaintiff alleges here, however, is that his record of non-retention will make him less desirable to other potential employers. Even if we assume that plaintiff could have satisfied his burden of proof on this contention in the district court, this fact alone does not establish a right to some form of pre-termination hearing. As Mr. Justice Stewart said in Roth,

"Mere proof, . . . that a record of non-retention in one job, taken alone, might make an individual somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of `liberty.\'" 408 U.S. at 574, n. 13, 92 S.Ct. at 2708 n. 13.

The property interest which plaintiff claims makes the procedural requirements of the due process clause applicable is his expectancy of reemployment. The expectancy claimed by plaintiff, however, is clearly not a matter of either actual or de facto tenure rights. There was no teacher tenure law in effect in Missouri in April 1969. Nor was there any informal or de facto system of contractual tenure as was involved in Perry v. Sindermann, supra. See 408 U.S. at 599-602, 92 S.Ct. 2717. Plaintiff's employment was clearly on a year-by-year basis. Thus, the only property right plaintiff can establish has to arise out of the fact that he was initially offered reemployment for the school year 1969-70.

The procedure under which plaintiff was initially offered reemployment by the defendant school board was prescribed by Missouri statute.¹ The statutory scheme required school boards to notify each teacher in writing by April 15 of their reemployment or non-reemployment for the following school year. The statute also required a teacher to make a written acceptance or rejection of an offer of reemployment within fifteen days of its receipt. Failure by the school board to give the required notice was declared by the statute to be reemployment of the teacher for the following year. Failure by the teacher to respond in writing within fifteen days to an offer was declared to be a rejection of the offer. Plaintiff contends that under the statutory scheme any offer of reemployment was irrevocable for the fifteen day period within which the teacher was required to respond. Since the offer of reemployment was irrevocable, plaintiff argues, the purported revocation by the school board was in reality a termination of his contract, which would require a pre-termination hearing.

Plaintiff's argument is based on a faulty premise. Under Missouri law² an offer of a bilateral contract is revocable by the offeror until acceptance. E. g., Sokol v. Hill, 310 S.W.2d 19, 20 (Mo.Ct.App.1958). There is nothing in § 168.111 to alter this general rule. The fifteen day period provided by the statute for acceptance was clearly intended for the protection of the school board, not that of the teacher. Indeed, even if we were inclined to construe the statute as plaintiff would have us read it, such a holding would depart so far from the plain language of the statute that a serious question of abstention would be posed. See Perry v. Sindermann, supra, at 603-604, 92 S.Ct. 2717 (concurring opinion of Burger, C. J.).

Substantive Due Process.

Plaintiff claims that even if he was not entitled to some sort of a pretermination hearing, the decision of the school board was in fact a constitutionally impermissible retaliation against the exercise of his rights of free speech. While we agree that plaintiff's non-reemployment may not be predicated on his exercise of the right of free speech, see ...