Orr v. Trinter

• Decision Date: 16 June 1971
• Docket Number: No. 20721.,20721.
• Citation: 444 F.2d 128
• Parties: Thomas Justin ORR, Plaintiff-Appellee, v. Raymond E. TRINTER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

444 F.2d 128 (1971)

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

No. 20721.

United States Court of Appeals, Sixth Circuit.

June 16, 1971.

COPYRIGHT MATERIAL OMITTED

Thomas A. Bustin, Asst. City Atty., Columbus, Ohio, for appellants; John C. Young, City Atty., William J. Melvin, Chief Trial Atty., Robert Cohen, Asst. City Atty., Columbus, Ohio, on brief.

Dwight I. Hurd and Robert J. Sidman, Columbus, Ohio, for appellee; Robert J. Sidman, Mayer, Tingley, Hurd & Emens, Columbus, Ohio, on brief.

David Rubin, Deputy Gen. Counsel, N. E. A., Richard J. Medalie, Alvin Friedman, Epstein, Friedman & Duncan, Washington, D. C., on brief for National Education Associations, as amicus curiae.

Kiger & Hess, Washington C. H., Ohio, on brief of the Board of Education of the City of Washington Court House, Ohio, as amicus curiae.

Before PHILLIPS, Chief Judge, and MILLER and KENT, Circuit Judges.

PHILLIPS, Chief Judge.

The question presented on this appeal is whether a public school teacher who has not attained tenure status and whose contract of employment is not renewed has a constitutional right to be told the reason for the non-renewal and to a hearing.

This appeal arises out of a suit by Thomas Justin Orr, a white high school teacher, against the Columbus (Ohio) Public Schools (a statutory school district), the Columbus Board of Education and various officials of the Board, and Raymond E. Trinter, the principal of Walnut Ridge High School in Columbus. The complaint alleges that Orr's constitutional rights were violated when, without being given any reason, hearing or other "procedural due process rights" the Board failed to renew his employment contract and that as a consequence he has a claim under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Federal jurisdiction is asserted under 28 U.S.C. § 1343(3).

The District Court entered judgment for Orr, and ordered that:

"The defendants deliver to plaintiff\'s counsel a written statement of the reasons upon which the defendants relied in deciding not to renew plaintiff\'s limited teaching contract, that the defendants set a hearing date and cause notice of such date to be given plaintiff\'s counsel, that said notice advise plaintiff that at the hearing he will be given an opportunity to present evidence relating to the reasons given for the decision not to renew his limited teaching contract and that within fifteen days of the hearing the defendants advise plaintiff of its decision." 318 F.Supp. at 1046.

We reverse.

Orr holds Bachelor of Arts and Master of Arts degrees. He is certified provisionally by the Ohio Department of Education to teach English, history and government in any Ohio School district for grades seven through twelve. During the 1969-70 school year he was employed as a tenth grade teacher at Walnut Ridge High School in Columbus under a limited teaching contract. Under this contract, he was considered a probationary teacher and had no tenure. It is unclear whether he could be considered to have an expectancy of reemployment. No Ohio decisions on that point have been found. The Ohio code provides that:

"Any teacher employed under a limited contract, and not eligible to be considered for a continuing contract, is, at the expiration of such limited contract, deemed, re-employed under the provisions of this section at the same salary plus any increment provided by the salary schedule unless the employing board, acting on the superintendent\'s recommendation as to whether or not the teacher should be re-employed, gives such teacher written notice of its intention not to re-employ him on or before the thirtieth day of April. Such teacher is presumed to have accepted such employment unless he notifies the board in writing to the contrary on or before the first day of June, and a written contract for the succeeding school year shall be executed accordingly." Ohio Revised Code, 3319.11 (Supp. 1970).

On April 10, 1970, Orr was informed by defendant Trinter that his contract of employment would not be renewed for the 1970-71 school year. Orr was told that if he resigned on or before April 15, 1970, his record would show no action by the Board of Education.

Orr refused to resign. On April 28, 1970, after a review of the case and a public discussion of its merits in the presence of Orr but without his participation, Orr received written notice from the Board of Education that his limited teaching contract for the 1969-70 school year would not be renewed. No reasons for this action were indicated on the notice.

On May 1, 1970, and again on May 22, 1970, Orr requested a written disclosure of the reasons for the refusal to renew his teaching contract. The Board did not respond to these requests. This litigation followed.

The case was submitted to the District Court on the complaint, defendants' motion to dismiss for failure to state a claim for which relief can be granted, agreed stipulations of fact and memoranda of the parties.

The Supreme Court has not decided the question with which we are confronted, and the Circuits are split.

Under facts substantially similar to those that are before us, the First Circuit has held that the teacher is entitled to a "written explanation, in some detail, of the reasons for non-retention," but "that a hearing is not constitutionally compelled." Drown v. Portsmouth School Dist., 435 F.2d 1182, 1185 (1st Cir.).

Conversely, the Fifth Circuit has held that no reasons or hearing are required. Thaw v. Board of Public Instruction, 432 F.2d 98 (5th Cir.). But see, Sindermann v. Perry, 430 F.2d 939 (5th Cir.) cert. granted 39 U.S.L.W. 3548.

Moreover, several District Courts, in addition to the District Court in the present case, have considered the issue. The results of these decisions are likewise varied. Compare, Schultz v. Palmberg, 317 F.Supp. 659 (D.Wyo.) and Bonner v. Texas City Independent School District, 305 F.Supp. 600 (S.D. Tex.), with Gouge v. Joint School District No. 1, 310 F.Supp. 984 (W.D.Wis); Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wis.) Aff'd 446 F.2d 806 (7th Cir.) and Lucia v. Duggan, 303 F.Supp. 112 (D.Mass.)

A review of several closely related cases from the various Circuits also shows divergent opinions. The Eighth Circuit has decided two pertinent cases. In Freeman v. Gould Special School District, 405 F.2d 1153 (8th Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed. 2d 93, several non-tenured Negro school teachers brought a § 1983 action as a consequence of the fact that they were not rehired. Racial discrimination was not an issue on appeal, and the controversy resolved to whether the Board's action in requiring the teachers to secure their principal's approval of a new contract was "arbitrary and capricious and a denial of federal due process under the Fourteenth Amendment." Id. at 1157. The court rejected plaintiffs' contention "that the Board must accord due process, both substantive and procedural, in all of its operative procedures." Id. at 1160. According to the Court:

"If this were so, we would have little need of tenure or merit laws as there could only be, as argued by the plaintiffs, a discharge for cause, with the school board carrying the burden of showing that the discharge was for a permissible reason. We do not believe this to be the law, as there are many public employees who are separated from their employment by a purely arbitrary decision, upon a change of administration or even a change of factual control where the appointments are not protected by civil service or some type of tenure, statutory or contractual." Id.

In another § 1983 case, Brooks v. School District, 267 F.2d 733 (8th Cir.), cert. denied, 361 U.S. 894, 80 S.Ct. 196, 4 L.Ed.2d 151, the Eighth Circuit affirmed the District Court's decision that plaintiffs had failed to sustain their burden of proof on their claim of dismissal based on racial grounds. In discussing the law the court said:

"School boards are vested with wide discretion in matters affecting school management, including the employment of teachers, and a court may not interfere with the board\'s action unless the board has exercised its power in an unreasonable, arbitrary, capricious, or unlawful manner. State ex rel. Wood v. Board of Education, 357 Mo. 147, 206 S.W.2d 566; Morris v. Williams, D.C.E.D.Ark., 59 F.Supp. 508, 510; 78 C.J.S. Schools and School Districts § 128, pages 920-923." Id. at 739.

The Fourth Circuit has held that a failure to rehire could be such an arbitrary and capricious act as to violate Fourteenth Amendment due process rights. See Johnson v. Branch, 364 F. 2d 177 (4th Cir.), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542.

In addition to the Thaw case previously discussed, the Fifth Circuit has decided several other pertinent cases. In Lucas v. Chapman, 430 F.2d 945 (5th Cir.), the Court held that a claim of failure to rehire due to exercise of First Amendment rights was cognizable under § 1983, and that a hearing before the Board was mandatory. The Court then distinguished, at page 947, its decision from the situation "where the only matter in issue is a difference of view over a school board's exercise of judgment and discretion concerning matters non-constitutional in nature," which, it said, did not require the board to hold a hearing. The court then commented on some inbetween situations.

"If the board asserts a non-constitutional reason and the teacher claims it is a sham and that the real reason is one impinging on his constitutional rights, he must be afforded a hearing. Also, even in the area of non-constitutional reasons, the board\'s decision must not be wholly unsupported by evidence else it would be so arbitrary as to be a constitutional violation. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed.

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