Norbeck v. Davenport Community School Dist.

• Decision Date: 28 December 1976
• Docket Number: No. 75-1613,75-1613
• Citation: 545 F.2d 63
• Parties: 81 Lab.Cas. P 55,001 Eskel NORBECK, Appellant, v. DAVENPORT COMMUNITY SCHOOL DISTRICT et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 63

545 F.2d 63

81 Lab.Cas. P 55,001

Eskel NORBECK, Appellant, v. DAVENPORT COMMUNITY SCHOOL DISTRICT et al., Appellees.

No. 75-1613.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1976.

Decided Nov. 29, 1976.

Rehearing and Rehearing En Banc Denied Dec. 28, 1976.

John R. Hearn, Des Moines, Iowa, for appellant.

Charles E. Miller, Davenport, Iowa, for appellees; Robert V. P. Waterman, Lane & Waterman, Davenport, Iowa, on the brief.

Before GIBSON, Chief Judge, and LAY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

The Board of Directors of the Davenport Community School District did not renew the contract of Eskel Norbeck, the principal of Central High School for the 1972-73 school year. Norbeck brought suit against the board members ¹ and the school district under 42 U.S.C. § 1983, claiming that the nonrenewal of his contract (1) was illegally based upon the exercise of his constitutional right to act as chief negotiator for the Davenport Education Association, and (2) constituted a denial of procedural due process. Jurisdiction over the federal claims was asserted under 28 U.S.C. §§ 1331, 1343(3) and 1343(4). Norbeck also asserted a claim for breach of contract, and the board's failure to conform with the procedural requirements of Iowa Code § 279.13 (1971).

The district court dismissed all claims except the one brought under § 1983, alleging a violation of his right of association. In addition the district court dismissed all the defendants, except the four board members who had voted not to renew his contract. After a 10-day trial the jury returned a verdict in favor of the four board members.

On appeal Norbeck challenges the jury instructions and the district court's pre-trial rulings. He asserts that the district court erred in instructing the jury concerning his First Amendment rights, the immunity of the board members and punitive damages. In addition he claims that the district court should not have dismissed: (1) the school district as a party to Count I, since he had alleged jurisdiction under 28 U.S.C. § 1331; (2) his breach of contract claim (Count II); (3) his claim based upon denial of procedural due process (Count III); and (4) his claim for a violation of Iowa Code § 279.13 (1971) (Count III). He also asserts that the district court erred in refusing to allow him to amend his complaint to include a charge of conspiracy under 42 U.S.C. §§ 1985 and 1986. ² We affirm the order of the district court dismissing the complaint as to all defendants and the entry of the judgment on the jury verdict in favor of the individual board members.

I

Eskel Norbeck was hired as principal by the Davenport Community School District in 1968. At that time he joined the local teachers' association, the Davenport Education Association (hereinafter DEA). In 1971 the DEA elected Norbeck to serve as the chief negotiator for the teachers in their negotiations with the school district. During the 1971-72 school year the DEA and the school district were governed by a contract entitled "Professional Communication Agreement" (PCA). The PCA recognized the DEA as the representative of all certified personnel of the school district except the superintendent and his executive directors. Thus school principals and other supervisory personnel were included in the bargaining unit. The PCA also provided that the board would not "discriminate" against any teacher for his DEA membership or participation in DEA activities. The PCA was ratified by the board and the DEA, and became effective on July 1, 1971, and was to continue in effect until June 30, 1972. Norbeck's 1971-72 teaching contract was for the same time period.

Negotiation over a new PCA was commenced on January 17, 1972, and subsequent negotiating sessions were held on January 31, February 7, and February 14. The discussions centered on the school board's proposal to exclude all supervisory personnel, including principals, from the bargaining unit represented by the DEA.

The evening of February 14, after the negotiation session, the board met in executive session to consider whether to renew Norbeck's teaching contract. At this session the board members discussed Norbeck's teacher evaluations, discipline at Central High School, his administrative skills, his poise and tact, and his role as a negotiator for the DEA. The board voted voted 6 to 1 to have Harold Kaiser, the superintendent, inform Norbeck of their intention not to renew his contract.

After being informed of the board's decision and requesting reasons therefor, Norbeck received a letter dated March 29, 1972, containing the four reasons for nonrenewal. The reasons given were: (1) unsatisfactory performance; (2) poor judgment; (3) inability to maintain discipline; and (4) inability to relate to parents and follow through on student problems.

On April 28, 1972, Norbeck, by letter to the board, requested a public hearing, and a written copy of the specific examples of incidents relating to his management of the school. On May 10, 1972, Kaiser responded to Norbeck's request for the specific examples of reasons for nonrenewal. The letter, in part, provided:

You have heretofore been provided with the four reasons why the School Board considered termination of your contract. At the private hearing held with you on April 8, 1972, individual examples of matters relating to your management of Central High School were discussed. These include:

1. Your handling of the 1971 Homecoming Queen Election.

2. Your failure to make recommendations concerning the 1971 readmission of a former Central High School student.

3. Your handling of the proposal to keep seniors in school for final evaluation at the close of the 1970 year.

4. Your handling of budget and physical plant and maintenance proposals to the Administration.

5. Your efforts to seek additional employment.

6. Conflict of interest resulting from your acting as chief negotiator for the D.E.A.

7. Evaluation of teachers under your jurisdiction.

8. Problems concerning maintenance of reasonable order and discipline in the school.

(Emphasis added).

A public hearing was held on May 15, 1972. Dale Paustian, the board president, summarized the four reasons contained in Kaiser's letter of March 29, 1972. He then proceeded to discuss numerous instances supporting these reasons. One of the examples of poor judgment cited by Paustian was Norbeck's role as negotiator for the DEA. ³ At the close of the meeting, board members voted 4 to 3 not to renew Norbeck's contract for the ensuing school year.

II

At trial the district court denied the defendants' motion for a directed verdict, and submitted to the jury the issue of whether Norbeck, in acting as chief negotiator for the DEA, was exercising his constitutionally protected right of association. Since we find that the district court should have directed a verdict in favor of the defendants, it is not necessary to discuss the alleged errors in the jury instructions, or the propriety of the dismissal of the school district as a party defendant.

Norbeck's complaint is that in retaliation for the exercise of his First Amendment right to serve as the chief negotiator for the DEA, his contract was not renewed. He asserts that the nonrenewal or termination of a nontenured public school teacher's contract may not be predicated on the exercise of the teacher's constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); 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, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); and Scheelhaase v. Woodbury Central Comm. School Dist., 488 F.2d 237 (8th Cir. 1973).

Assuming, arguendo, that Norbeck's contract was not renewed for reasons which included his role as chief negotiator for the DEA, we view the fundamental question to be whether a school board may constitutionally consider, in evaluating the job performance of a school principal, his participation in bargaining sessions with the school board as chief negotiator for a teachers' association.

Norbeck, as principal of Central High School, was the chief administrator for that facility, and was responsible for its physical structure, educational program, staff and students. His discretion in fulfilling these responsibilities was subject to the policy guidelines of the school board, as administered by the superintendent and his staff. The evidence demonstrated that one of his primary responsibilities was the supervision, evaluation and coordination of the work of the teaching staff. As principal, Norbeck worked closely with the school district's director of personnel in the hiring of teachers for Central High School. It was also his duty to evaluate a teacher's performance, and report his findings to the superintendent, so that in case of a deficiency, a proper solution, including disciplinary action, could be found. Also, as principal, Norbeck was the primary administrator at stage one for any teacher grievance.

In asserting his constitutional claim, Norbeck relies in part on the provision of the 1971-72 master agreement (the PCA) with the DEA, which provided that the board would not "discriminate" against teachers for their DEA activities. Assuming that Norbeck had a contractual right to become a member of the DEA, and serve as its chief negotiator, this alone does not create a constitutional right. We must determine whether under the factual setting of the case, Norbeck enjoyed a constitutional right to act as chief negotiator for the DEA.

Freedom of association is a "basic constitutional freedom" that is " 'closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.' " Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976). The right of association encompasses...