Drown v. Portsmouth School District, 7667.

• Decision Date: 18 December 1970
• Docket Number: No. 7667.,7667.
• Citation: 435 F.2d 1182
• Parties: Patrica DROWN, Plaintiff, Appellant, v. PORTSMOUTH SCHOOL DISTRICT et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

435 F.2d 1182 (1970)

Patrica DROWN, Plaintiff, Appellant, v. PORTSMOUTH SCHOOL DISTRICT et al., Defendants, Appellees.

No. 7667.

United States Court of Appeals, First Circuit.

December 18, 1970.

Jack B. Middleton, Manchester, N. H., with whom Peter B. Rotch and McLane, Carleton, Graf, Greene & Brown, Manchester, N. H., were on the brief, for appellant.

John C. Driscoll, Portsmouth, N. H., for appellees.

Bradley F. Kidder and Nighswander, Lord, Martin & KillKelley, Laconia, N. H., on the brief for The New Hampshire School Boards Ass'n, amicus curiae.

David Rubin, Richard J. Medalie, Alvin Friedman, and Epstein, Friedman & Duncan, Washington, D. C., on brief for The National Education Ass'n, amicus curiae.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Appellant, a public school teacher, brings this action pursuant to 42 U.S.C. § 1983 against the Portsmouth School District, the administrator, and the school board members of the district. She claims that appellee's failure to offer her a teaching contract for the 1970-71 school year deprived her of rights guaranteed to her by the Constitution.

Appellant was employed as a non-tenured teacher for the 1968-69 and 1969-70 school years. For each year, she was employed under a standard one-year contract. Under New Hampshire law and pursuant to appellant's one-year contract, a non-tenured teacher may not be dismissed without cause and without being afforded certain procedural rights during the school year, and tenured teachers are entitled to similar safeguards if they are not rehired. N.H. Rev.Stat.Ann. ch. 189, § 13. But a failure to rehire a non-tenured teacher affords the teacher no rights other than to notification by March 15 of the school year. N.H.Rev.Stat.Ann. ch. 189, § 14-a.

Appellant was given timely notice that she would not be rehired for the 1970-1971 school year. She sought and was denied a list of reasons for this decision and a hearing so that she might have an opportunity to challenge it. Her complaint, which was dismissed below as failing to state a cause of action, claims that she was not afforded due process by the school district. She argues that she was denied certain rights, principally that of a hearing when the school district decided not to rehire her.¹

Appellant's contract with appellees implies that the school district has virtually unlimited discretion to rehire her or not. See Note, Developments in the Law — Academic Freedom, 81 Harv. L.Rev. 1045, 1099-1100 (1968). Nevertheless, there is no doubt that appellant has an interest in being rehired sufficient to prevent the school district from not doing so for constitutionally impermissible reasons. Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Johnson v. Branch, 364 F.2d 177 (4th Cir., en banc, 1966), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17 L. Ed.2d 542 (1967); Albaum v. Carey, 283 F.Supp. 3 (E.D.N.Y.1968). See generally, Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439, 1445-1458 (1968); Davis, The Requirement of a Trial-Type Hearing, 70 Harv.L.Rev. 193, 233-243 (1956). But appellant makes no claim of any violation of her collateral constitutional rights; she merely says that the process by which the decision not to rehire her was made does not comport with the fundamental fairness guaranteed her by the Fourteenth Amendment.

Courts are divided on the issue of the administrative procedural rights to which a non-tenured public school teacher is entitled when he is not rehired. Some say that the teacher has no right to an administrative hearing, although he does have a legal remedy, if he was dismissed for constitutionally impermissible reasons such as his race or the exercise of First Amendment rights. Freeman v. Gould Special School District of Lincoln County, Arkansas, 405 F.2d 1153 (8th Cir. 1969), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed.2d 93 (1969).² Others have held that a nontenured teacher is entitled to a hearing even when there is no allegation that the decision not to rehire was made for constitutionally impermissible reasons. Orr v. Trinter, 318 F.Supp. 1041 (S.D.Ohio, 1970); Roth v. Board of Regents, 310 F.Supp 972 (W.D.Wisc.1970); Gouge v. Joint School District No. 1, 310 F.Supp. 984 (W.D.Wisc.1970). Still others have taken a middle course, requiring administrative hearings only when there is an allegation that a constitutionally impermissible reason motivated the decision not to rehire. Ferguson v. Thomas, 430 F.2d 852 (5th Cir., 1970); Sindermann v. Perry, 430 F.2d 939 (5th Cir., 1970).³ We are faced with this precise question for the first time.⁴

To determine what, if any, procedures are required when a school board decides not to rehire a non-tenured teacher, we are required to balance the competing interests of the individual teacher and of the school board. Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 Duke L.J. 841 (1970). The school board is interested primarily in its ability to insure the quality of the school system by employing teachers for a probationary period. During this period, the board attempts to evaluate teaching ability to determine if the teacher merits tenure. Such evaluations require judgments about many subjective factors which are difficult to document with precision, such as the ability of the teacher to inspire students, his mastery of and progress in his subject, and his capacity to work effectively with colleagues, supervisors, and parents.

The teacher, particularly one at the outset of his career, is in the position of having invested in preparation for a career which depends mainly on the willingness of public bodies to employ him. Such willingness, as the complaint alleges, is seriously dissipated if not destroyed when an early employer refuses to rehire the teacher. In the present case the plaintiff, after four years of apparently satisfactory performance in Illinois and New Hampshire, confronts a decision not to rehire her without any reason given. This effectively forecloses her from attempting any self improvement, from correcting any false rumors and explaining any false impressions, from exposing any retributive effort infringing on her academic freedom, and from minimizing or otherwise overcoming the reason in her discussions with a potential future employer.

Against this background of competing interests, we assess the benefits and burdens of the rights claimed by appellant. We first examine the effect on both the teacher and the school authorities of a right to receive a detailed statement of reasons for non-retention, accompanied by access to any teaching evaluation reports.⁵ From the point of view of the teacher, such notice would give him the opportunity informally to correct a decision made on the basis of mistaken or false facts. Moreover, he might find that he had evidence that could be used to support a claim that he was not rehired for constitutionally impermissible reasons. Even if the reasons assigned were false ones, demonstrating their falsity would have probative value in a claim that the real reasons lie elsewhere. Additionally, the teacher would have the extra benefit of knowing where his performance failed to live up to expectations — a benefit that may not be constitutionally required but which is surely desirable. Finally, if the reason were to lie in a judgment that the teacher was too innovative and unconventional, this very fact might be turned into a recommendation in the eyes of another possible employer.

From the viewpoint of the school board, a requirement that it state its reasons for not rehiring a non-tenured teacher would impose no significant administrative burden. Nor would it significantly inhibit the board in ridding itself of incompetent teachers. The workability of such a requirement is evident from the fact that several states presently require their school boards to do so. E.g., Wash.Rev.Code Ann. § 28.67.070 (1964).⁶ As to access to administrative evaluations, we would assume that, since part of their objective is to help the teacher improve, their content is made known to the teacher as a matter of policy.⁷ Access as of right has been granted in a number of states. E.g., Conn. Gen.Stat.Ann. § 10-151(a) (Supp. 1967). Finally, while access by a teacher to an administrator's frank appraisal of his ability might lead to embarrassment and friction if the teacher-administrator relationship were to continue, such a consideration is moot when the teacher has not been rehired. The relationship could be further impaired only in the unlikely case that the decision not to rehire were reversed despite negative reports; and in such a case, the avoidance of an unjustified non-retention must outweigh the danger of disharmony.

We therefore hold that the interests of the non-tenured teacher in knowing the basis for his non-retention are so substantial and that the inconvenience and disadvantages for a school board of supplying this information are so slight as to require a written explanation, in some detail, of the reasons for non-retention, together with access to evaluation reports in the teacher's personnel file.⁸

Appellant, however, argues further that the right to a statement of the reasons for not being rehired is meaningless unless the school board can be forced to prove those reasons at a hearing. As an initial response, we note that a hearing is not constitutionally compelled in all cases where individual rights may be impaired.

"The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. * * * The very nature of due process

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