Milne v. School Committee of Manchester

• Decision Date: 01 October 1980
• Citation: 410 N.E.2d 1216,381 Mass. 581
• Parties: Forrest W. MILNE, Third v. SCHOOL COMMITTEE OF MANCHESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1216

410 N.E.2d 1216

381 Mass. 581

Forrest W. MILNE, Third v. SCHOOL COMMITTEE OF MANCHESTER.

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 8, 1980.

Decided Oct. 1, 1980.

Ann Clarke for plaintiff.

James A. Tommey, Braintree, for defendant.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Judge.

The defendant school committee concluded in March, 1979, that a reduction in the number of physical education teachers to be employed during the next school year was advisable due to an actual decrease in the number of pupils in the Manchester schools. ¹ The school committee, therefore, voted to dismiss the plaintiff, a tenured physical education teacher. The plaintiff had the least seniority of the physical education teachers employed during the 1978-1979 school year, and there was no untenured teacher whose position the plaintiff was qualified to fill.

The plaintiff argues that, as a matter of statutory and constitutional right, he was entitled to notice and a hearing prior to the termination of his employment. ² The case was heard in the Superior Court on the school committee's motion for summary judgment. There is no disputed fact. The plaintiff appeals from a judgment dismissing his complaint. We granted his application for direct appellate review and now affirm the judgment.

The plaintiff maintains that, under the provisions of G.L. c. 71, § 42, he was entitled to notice and a hearing prior to termination of his employment. Section 42 establishes procedures that a school committee must follow in dismissing a tenured teacher ("a teacher ... employed at discretion"). That section provides, however, that "(n)either this nor the preceding section (referring to § 41, concerning the granting of tenure) shall affect the right of a committee to dismiss a teacher whenever an actual decrease in the number of pupils in the schools of the town renders such action advisable." G.L. c. 71, § 42, as amended through St. 1972, c. 464, § 2. We read that language as removing from the notice and hearing requirements of § 42 any dismissal decision based solely on an actual decrease in the number of pupils in the schools of a municipality. The broad language of § 42 that it shall not affect the right of the school committee to dismiss a teacher due to a decline in enrollment does more than define a decline in enrollment as good cause for dismissal of a tenured teacher; it makes the notice and hearing provisions of § 42 inapplicable to the plaintiff's circumstances. See Lane v. School Comm. of Paxton, --- Mass. --- ^a, 392 N.E.2d 531 (1979).

The plaintiff contends that his status as a tenured teacher gave him a legitimate claim of entitlement to continued employment and that, under the due process clause of the Fourteenth Amendment to the Constitution of the United States, his employment could be terminated only after notice and a hearing. See Perry v. Sinderman, 408 U.S. 593, 601-602, 92 S.Ct. 2694, 2699-2670, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576-577, 92 S.Ct. 2701, 2708-2709, 33 L.Ed.2d 548 (1972). The existence of a constitutionally protected property interest depends on the nature of the plaintiff's rights under State law. See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976).

The plaintiff's constitutional argument must fail because he had no statutory or demonstrated contractual right to expect continued employment in the face of declining enrollment. See McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 785, 322 N.E.2d 758 (1975); Luz v. School Comm....