Loebeck v. Idaho State Bd. of Ed.

• Decision Date: 10 January 1975
• Docket Number: No. 11378,11378
• Citation: 530 P.2d 1149,96 Idaho 459
• Parties: Maude E. LOEBECK, Plaintiff-Appellant, v. The IDAHO STATE BOARD OF EDUCATION as trustee for Idaho State University and William E. Davis, President of Idaho State University, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1149

530 P.2d 1149

96 Idaho 459

Maude E. LOEBECK, Plaintiff-Appellant, v. The IDAHO STATE BOARD OF EDUCATION as trustee for Idaho State University and William E. Davis, President of Idaho State University, Defendants-Respondents.

No. 11378.

Supreme Court of Idaho.

Jan 10, 1975.

Vern E. Herzog, Jr., Pocatello, for plaintiff-appellant.

Herman J. McDevitt of McDevitt & McDevitt, Pocatello, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a judgment of the district court adverse to plaintiff-appellant in an action wherein she, a former member of the faculty of Idaho State University, sought a determination of faculty tenure, reinstatement as a faculty member, a determination of contract rights and damages. We affirm in part and reverse in part.

Plaintiff-appellant Maude Loebeck was initially employed as a faculty member at Idaho State University in the year 1966 under a one year contract. Her official status was that of non-tenured faculty member. She was also re-employed under a one year contract in each of the succeeding four years. By letter dated February 26, 1971, the academic vice-president informed appellant that she would be offered a contract for the following academic year (August 23, 1971 to May 23, 1972), but that the contract would be 'terminal' and that she would not be rehired thereafter. On March 12, 1971, William E. Davis, President of the University, also wrote appellant a letter setting forth the same information but in greater detail.

Appellant was never informed of the reasons for her nonre-employment after the period of time of the 'terminal' contract. No hearing was held thereon. On April 1, 1971, appellant received a form of contract for the following academic year, august 23, 1971 to May 23, 1972, which was labeled 'terminal appointment.' She signed that contract and returned it accompanied by a letter from her attorney advising that by signing the proffered contract she was not waiving or releasing any claim she might have in regard to tenure. Upon receiving the returned contract and its accompanying letter the University advised appellant that by accepting the contract she waived any claim she may have to tenure. She thereafter refused to comply with the contract and brought the instant action.

Appellant claimed that her constitutional rights were violated on the basis that she was denied due process, asked the court to determine that she was entitled to tenure, that she be reinstated as a faculty member, that her contractual right were violated, and that she be awarded damages. Following trial the district court entered findings of fact, conclusions of law and judgment wherein all relief was denied to plaintiff-appellant.

Appellant argues initially that she was denied liberty and/or property without due process of law in violation of the Fourteenth Amendment of the United States Constitution. Heavy reliance is placed upon Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) and Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Those cases decided by the United States Supreme Court on the same day treat the issue of due process rights, if any, accruing to a public teacher upon termination of employment.

In both Perry and Roth the key issue was whether those plaintiffs had property or liberty interests in the expectation of re-employment so as to trigger the due process clause. As was stated in Roth, only if such an interest exists need a teacher be given procedural safeguards prior to termination of employment. The court in Roth said: 'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.' Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. The court in Roth found that the teacher's employment which was on a year to year basis secured no interest in continued employment. The court also stated: 'Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.' 92 S.Ct. at 2709. As was stated by Burger, C. J., concurring in roth, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, before appellant herein can be found to have a property interest she must have a 'right to re-employment under state law, arising from either an express or implied contract * * *' 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570.

In the case at bar the trial court found that the conferring of tenure at Idaho State University required an affirmative act by the University administration. That finding is supported in the record. It is undisputed in the record that the administration has never affirmatively granted appellant a tenure status and she was informed that she was not granted tenure. We therefore deem it clear that appellant had not gained the status of a tenured faculty member at the University. Hence appellant's position is in sharp contrast with that of the plaintiff in Perry v. Sindermann, supra, and although she contends that the lower court should have required the University to grant her tenure status it is clear that the lower court was correct in its refusal.

A nontenured teacher has no constitutional right to a statement of reasons or a hearing on a university decision not to rehire. To rule otherwise would violate the purpose of having a probationary period before tenure permitting a university to evaluate a teacher with no obligation to rehire. Frazier v. Curators of University of Missouri, 495 F.2d 1149 (8th Cir. 1974); Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971); cert. den. 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767 (1972).

Nothing in the terms of the year to year contracts entered into between appellant and the University or in any state statute or university rule or policy conferred on appellant any legitimate entitlement to tenure. She had nothing more than a hope of receiving tenure. 'That hope is not a property right and the frustration of such a hope does not trigger the right to a hearing * * *' Perrin v. Oregon State Board of Education, 515 P.2d 409 (Or.1973); See also Board of Regents v. Roth, supra. Although appellant had been rehired in consecutive years that did not change her nontenured status. She had only come closer to the time at which a decision had to be made as to granting or non-granting of tenure. Blair v. Board of Reg. of State Univ. & Com. Col. Sys., Tenn., 496 F.2d 322 (6th Cir. 1974).

Appellant has also argued that she had a 'liberty' interest protected by the due process clause of the Constitution of the United States. In the case at bar as in Board of Regents v. Roth, supra, no charge was made against appellant that might damage her standing or association in the community and there is no suggestion that any stigma or other disability was imposed which foreclosed freedom to take advantage of other employment opportunities. No charges were made against appellant and as emphasized by the trial court the merits of the University decision were not at issue at trial. We therefore find that appellant was deprived of no liberty interest which is constitutionally protected. Board of Regents v. Roth, supra. Since appellant was deprived of no constitutionally protected property or liberty interest it follows that she has no right to a hearing, and cases involving hearing requirements such as Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) are inapplicable here. In th case at gar and in similar situations there is no obligation upon the University to provide its reasons for non-renewal. Board of Regents v. Roth, supra; Perrin v. Oregon State Board, supra. In view of the foregoing discussion the decision of the trial court relating to tenure and refusing to reinstall as a faculty member are affirmed.

We turn now to appellant's contention that as a contractual matter she was given insufficient notice of non-renewal. It was stipulated at trial that the University had followed all the procedural requirements with the exception of the sufficiency and timeliness of notice. The record is clear that appellant was furnished adequate and sufficient notice expressly and clearly explaining that appellant was offered a final one year contract and...