Orr v. Trinter

• Decision Date: 03 August 1970
• Docket Number: Civ. A. No. 70-163.
• Citation: 318 F. Supp. 1041
• Parties: Thomas Justin ORR, Plaintiff, v. Raymond E. TRINTER et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

318 F. Supp. 1041

Thomas Justin ORR, Plaintiff, v. Raymond E. TRINTER et al., Defendants.

Civ. A. No. 70-163.

United States District Court, S. D. Ohio, E. D.

August 3, 1970.

COPYRIGHT MATERIAL OMITTED

Dwight I. Hurd, Columbus, Ohio, for plaintiff.

William J. Melvin, Asst. City Atty., Columbus, Ohio, for defendants.

OPINION AND ORDER

KINNEARY, District Judge.

This matter has been submitted to the Court on the complaint, defendant's motion to dismiss for failure to state a claim for which relief can be granted, stipulations (substituted for findings which would have been made as a result of a trial on the merits) and memoranda of the parties.

The plaintiff, Thomas Justin Orr, is a school teacher holding a Bachelor of Arts degree and a Master of Arts degree. He is provisionally certified by the Ohio Department of Education to teach English, history and government in any Ohio school district to grades seven through twelve.

Plaintiff was employed during the 1969-1970 school year as a tenth grade English and history teacher at Walnut Ridge High School, Columbus, Ohio under a limited teaching contract.

On April 10, 1970, plaintiff was informed by defendant Trinter, Principal of Walnut Ridge High School, that his contract of employment would not be renewed for the 1970-1971 school year, and he was told that, if he resigned on or before April 15, 1970, his record would show no action by the Board of Education.

Plaintiff did not resign. The defendants did not give plaintiff reasons for their proposed decision not to renew his limited teaching contract. The defendant, Columbus Board of Education, met on April 28, 1970 and reviewed plaintiff's case and held a public discussion of its merits.

Plaintiff was present at the meeting of the Board of Education, but he did not participate in the review of his case or the discussion. Plaintiff was given written notice that his limited teaching contract for the 1969-1970 school year would not be renewed. No reasons were given for the nonrenewal.

On May 1, 1970 and May 22, 1970, subsequent to the action by the Board of Education, plaintiff requested a written disclosure of the reasons for the refusal to renew his teaching contract. Defendants did not respond to these requests.

Plaintiff contends that the defendants deprived him of due process of law under the Fourteenth Amendment in that they refused to renew his limited teaching contract without providing him (1) written notice of the proposed nonrenewal, (2) written notice of a hearing on the reasons supporting nonrenewal and (3) a hearing at which he could present his case and confront his accusers.

Defendants contend that the action should be dismissed because they have no constitutional duty to provide plaintiff a hearing on the reasons for the nonrenewal of his limited teaching contract.

The Court has jurisdiction under the provisions of Title 28, United States Code, Section 1343(3); Title 42, United States Code, Section 1983; and Title 28, United States Code, Sections 2201, 2202.

Defendant asserts that government employment is not a property right, but a privilege, and therefore a government employee has no absolute right to a due process hearing on the reasons for the discontinuation of his employment. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 894-895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1960); Birnbaum v. Trussell, 371 F.2d 672, 677 (2d Cir. 1968); Jones v. Hopper, 410 F.2d 1323, 1327-1329 (10th Cir. 1969); Parker v. Board of Education, 237 F.Supp. 222, 227-228 (D.Md.1965), 348 F.2d 464 (4th Cir. 1965) cert. den. 382 U.S. 1030, 86 S.Ct. 653, 15 L.Ed.2d 543 (1966).

A statement of the general rule does not end the Court's inquiry. The employment of a teacher in a public school cannot be terminated because he exercised a constitutional right. Slochower v. Board of Higher Education, 350 U.S. 551, 555-556, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Further, the Court must balance the precise nature of the governmental function involved against the private interest affected by the termination of employment to determine whether notice and hearing are required. Cafeteria and Restaurant Workers Union Local 473, AFL-CIO v. McElroy, supra 367 U.S. at 895, 81 S.Ct. 1743; Birnbaum v. Trussell, supra 371 F.2d at 678; Roth v. Board of Regents, 310 F.Supp. 972, 976-977 (D.Wis.1970).

In the instant case on the facts as stipulated by the parties, there is no evidence that the plaintiff's employment was terminated because he exercised a constitutional right. Therefore, the Court is solely concerned with determining the nature of the governmental and private interests and then balancing them to determine whether plaintiff is entitled to due process hearing at which the defendants must find reasons for refusing to renew his teaching contract.

The Court in Roth v. Board of Regents, supra at 976-982 and Gouge v. Joint School District No. 1, 310 F.Supp. 984, 991 (D.Wis.1970) thoroughly discussed the nature of the state's function and interest in operating a public school system and the interest of a non-tenured school teacher whose contract is not renewed. The Roth Court found the school board had an interest in assembling and preserving a community of teachers. The Court continued:

I am to consider how vital it is to this interest that during a relatively short initial interval the university public school system be free arbitrarily to decide not to retain a professor teacher, so long as its decision is not based upon his exercise of freedoms secured to him by the Constitution. The concept of tenure obviously enjoys a rational basis, as well as a traditional basis. It is reasonable that there be a time in which to observe a new teacher and scholar and that the university public school system retain during that time a considerable latitude in deciding whether he should remain. It is reasonable that after a period of time, or after the newcomer has won a certain measure of acceptance reflected in his academic rank, he should acquire rather strong protection against non-retention; such an arrangement is conducive to productive and perhaps controversial effort. Thus it is reasonable that there be available a very wide spectrum of reasons, some subtle and difficult to articulate and to demonstrate, for deciding not to retain a newcomer or one who has not yet won sufficient respect from his colleagues. And it is reasonable that thereafter this available spectrum of reasons be sharply narrowed and confined to those amenable to articulation and demonstration.

The core issue here, however, is more difficult. No interest of the university is directly served by a regime in which a decision not to retain a newcomer may be made upon a basis wholly without support in fact or by a decision upon a wholly unreasoned basis. If the university is forbidden, constitutionally, to rest its decision on such an arbitrary basis, the question arises: in practice will the university become so inhibited that the available spectrums of reasons for non-retention in the two situations will merge, the distinction between tenure and absence of tenure will shrink and disappear, and the university will be unable to rid itself of newcomers whose inadequacies are promptly sensed and grave but not easily defined? It will not do to ignore this danger to the institution and to its central mission of teaching and research.

As against this danger, however, there is to be set the interest of the individual new professor. To expose him to non-retention because the deciding authority is utterly mistaken about a specific point of fact, such as whether a particular event occurred, is unjust. To expose him to non-retention on a basis wholly without reason, whether subtle or otherwise, is unjust. There can be no question that, in terms of money and standing and opportunity to contribute to the educational process, the consequences to him probably will be serious and prolonged and possibly will be severe and permanent. "Badge of infamy" is too strong a term, but it is realistic to conclude that non-retention by one university or college creates concrete and practical difficulties for a professor in his subsequent academic career. Roth v. Board of

...