HANOVER TP. FED. OF TEACH. v. Hanover Commun. Sch. Corp., Civ. No. 70 H 85.

• Decision Date: 14 August 1970
• Docket Number: Civ. No. 70 H 85.
• Parties: HANOVER TOWNSHIP FEDERATION OF TEACHERS et al. v. HANOVER COMMUNITY SCHOOL CORPORATION et al.
• Court: U.S. District Court — Northern District of Indiana

318 F. Supp. 757

HANOVER TOWNSHIP FEDERATION OF TEACHERS et al. v. HANOVER COMMUNITY SCHOOL CORPORATION et al.

Civ. No. 70 H 85.

United States District Court, N. D. Indiana, Hammond Division.

August 3, 1970.

Supplemental Memorandum August 14, 1970.

Saul I. Ruman, Hammond, Ind., for plaintiffs.

Dennis J. Stanton, Crown Point, Ind., for defendants.

MEMORANDUM

BEAMER, District Judge.

The twenty-two plaintiffs named above were teachers in the Hanover School System during the school year 1969-70. On April 27, 1970, they were offered contracts for the 1970-71 school year. The School Board notified the teachers that failure to return the contracts by June 1, 1970, would be taken by the School Board as a rejection of further employment rights. The teachers did not return their contracts by June 1, 1970, and were notified by the School Board on June 5, 1970, that they would not be reemployed for the 1970-71 school year. Six of the twenty-two teachers were among the plaintiffs named in the original complaint and the first and second amended complaints. However, none of the allegations in those complaints involved the six, and it now appears that they had been improperly joined as plaintiffs in the original and the first two amended complaints. The third amended complaint added allegations concerning the firing for refusal to return the contracts, and all twenty-two teachers named above were among the named plaintiffs. At the time the third amended complaint was filed, the Court indicated that it had serious doubts as to whether subject matter jurisdiction existed as to these twenty-two plaintiffs. The Court stated that it would not rule on the matter until defendants had filed a motion to dismiss. The defendants, however, have not seen fit to file a motion to dismiss other than an oral motion at the time the Court raised the question, nor have they filed an answer to the third amended complaint. In fact, defendants' brief after the trial does not even mention these twenty-two plaintiffs or their claims. The Court is thus forced to raise the jurisdictional question on its own motion.

The twenty-two plaintiffs listed above contend that the action of the defendants in sending out individual contracts to the teachers constituted a failure of the School Board to bargain in good faith with the Hanover Township Federation of Teachers, the collective bargaining agent for the teachers. In Indianapolis Education Ass'n v. Lewallen, 72 LRRM 2071 (7th Cir. 1969), a group of Indianapolis schoolteachers contended that their constitutional rights had been infringed by actions of the School Board which were almost identical to those involved here. In rejecting the contentions of the teachers, the Court of Appeals ruled as follows, at 2072:

The gravamen of the complaint goes to the failure on the part of the defendants-appellants to bargain collectively in good faith. But there is no constitutional duty to bargain collectively with an exclusive bargaining agent. Such duty, when imposed, is imposed by statute. The refusal of the defendants-appellants to bargain in good faith does not equal a constitutional violation of plaintiff-appellees' positive rights of association, free speech, petition, equal protection, or due process. Nor does the fact that the agreement to collectively bargain may be enforceable against a state elevate a contractual right to a constitutional right.

In seeking relief here, the twenty-two plaintiffs claim the Court has jurisdiction under 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3) and (4), both of which require a showing of a deprivation of a federal constitutional or statutory right. The contentions of the plaintiffs that the School Board's action violated state law or constituted a breach of a duty to bargain in good faith raise issues cognizable in state courts, but fail to present any federal question. Therefore, the Court does not have jurisdiction over the subject matter of the claims of the twenty-two teachers listed above, and the action must be dismissed as to them.

SUPPLEMENTAL MEMORANDUM

A teachers union known as the Hanover Township Federation of Teachers was organized in the Hanover school system during the 1968-69 school year. The union undertook a short strike at the end of the 1968-69 academic year and again at the beginning of the 1969-70 school year. In April of 1970 the following teachers were notified that their contracts would not be renewed for the 1970-71 school year: Michael McCasey, James Forrester, Marsha Keene, Rocman Whitsell, Jack Beanblossom, John Harkins, and Helen Snedden, all non-tenure high school teachers, Larry Kirgan, a high school teacher on tenure, and Eleanor Varda, an elementary teacher not on tenure. All were members of the union which had been on strike. These teachers brought suit under 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3) and (4), claiming that the non-renewal of their contracts was in deprivation of their associational rights under the United States Constitution. Joined as defendants are the members of the Hanover school board, the board itself, Paul Scamihorn, who is the Superintendent of the school corporation, and John Roper, who is the principal of the high school.

The complaint is brought in three counts. Count I contains the allegations of infringement of plaintiffs' First Amendment rights of association. Count II further alleges that the defendants breached their duty to negotiate with the union. In Count III plaintiffs contend that the nonrenewal of their contracts failed to comply with the procedural due process requirements of the United States Constitution. The Court now finds that Counts II and III must be dismissed. No federal question is raised in Count II, and therefore the Court is without subject matter jurisdiction. Whether the school board breached a duty to negotiate is a question of state law. As to the plaintiffs' rights to procedural due process, this Court need not express an opinion as to the validity or sufficiency of the procedures by which the plaintiffs' contracts were not renewed, since the full trial in this Court has provided the plaintiffs with the procedural due process required by the Constitution. There remains for consideration, therefore, only the allegations of discrimination contained in Count I.

It is, of course, recognized that a school board has a great degree of discretion in making determinations as to the hiring and firing of its teachers. Nevertheless, as stated in Johnson v. Branch, 364 F.2d 177, 180 (4th Cir. 1966):

However wide the discretion of School Boards, it cannot be exercised so as to arbitrarily deprive persons of their constitutional rights. Zimmerman v. Board of Education, 38 N.J. 65, 183 A. 2d 25, 27-28 (1962); Garner v. Board of Public Works, 341 U.S. 716, 725, 71 S.Ct. 909, 95 L.Ed. 1317 (1951).

The numerous court decisions dealing with the substantive rights of teachers have made clear the extent of the protection afforded by the Constitution. As summarized in the recent decision in Roth v. Board of Regents of State Colleges, 310 F.Supp. 972, 976 (W.D. Wis. 1970):

The employment of a teacher in a public school cannot be terminated because he has exercised that freedom secured to him by the Constitution of the United States. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 605, 606, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969); McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968); Bomar v. Keyes, 162 F.2d 136 (2d Cir. 1947), cert. den. 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400. This substantive constitutional protection is unaffected by the presence or absence of tenure under state law. Johnson v. Branch, 364 F. 2d 177 (4th Cir. 1966), cert. den. 385 U.S. 1003 87 S.Ct. 706, 17 L.Ed.2d 542; see McLaughlin v. Tilendis supra; Bomar v. Keyes, supra; Lucia v. Duggan, 303 F.Supp. 112, 118 (D. Mass. 1969). Nor is it material whether employment is terminated during a given contract period, or not renewed for a subsequent period. McLaughlin v. Tilendis, supra.

The issue here is not whether the plaintiffs have a constitutional right to be teachers or to receive payment for extracurricular activities. The question is whether the termination of the plaintiffs' contracts for teaching and extracurricular activities deprived the plaintiffs of the freedom of association guaranteed them by the Constitution. It is the opinion of the Court that the actions of the defendants were motivated by a desire to retaliate against members of the union, and that, in terminating the contracts of the plaintiffs, the defendants deprived them of their constitutional rights in violation of 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343.

The evidence at trial established that not only were the plaintiffs members of the union, but among them were the leaders of the union and some of its...