Parker v. Board of Education of Prince George's County, Md.

• Decision Date: 11 January 1965
• Docket Number: Civ. No. 15402.
• Citation: 237 F. Supp. 222
• Parties: Ray Elbert PARKER v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, MARYLAND.
• Court: U.S. District Court — District of Maryland

237 F. Supp. 222

Ray Elbert PARKER v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, MARYLAND.

Civ. No. 15402.

United States District Court D. Maryland.

January 11, 1965.

Robert H. Reiter, Andrew P. Zimmer, and David B. Isbell, Washington, D. C., and Fred E. Weisgal, Baltimore, Md., for plaintiff.

Paul M. Nussbaum, Hyattsville, Md., for defendant.

Thomas B. Finan, Atty. Gen. of Maryland, and Mathias J. DeVito, Asst. Atty. Gen., Baltimore, Md., for State Board of Education.

Walter S. Levin, F. Duncan Cornell, and Sauerwein, Benson & Boyd, Baltimore, Md., for Maryland State Teachers' Assn., Inc.

Prince George's County Teachers' Assn., Inc., amici curiae.

THOMSEN, Chief Judge.

Plaintiff, formerly a probationary teacher in a public school in Prince George's County, Maryland, filed the present suit against the County Board of Education¹ alleging "dismissal" and "termination" of his contract in violation of claimed constitutional rights under the First, Fifth and Fourteenth Amendments, and seeking a judgment in the nature of an injunction requiring that he be "reinstated" in his position, that he be granted a hearing on the "charges" against him, that defendant's records be "corrected", etc., and for $100,000 damages, plus counsel fees.

In fact, plaintiff was not dismissed from his position; his contract was not renewed at the end of the school year, pursuant to a provision therein which permitted the Board to terminate the contract at the end of the first or second school year, i. e. before plaintiff acquired tenure, by written notice during June or July.

The County Board first filed a motion to dismiss the complaint, which was later withdrawn and replaced by an answer and a motion for summary judgment on its Third Defense, that the teachers' contract by which plaintiff was employed permitted the County Board lawfully to terminate plaintiff's employment at the conclusion of the first contract year with or without cause, and without the necessity of any hearing, and denied that any constitutional rights had been violated; and on its Fourth Defense, which alleged that under the Public Education Law of Maryland the State Board of Education has sole jurisdiction to determine any factual question relating to the refusal of defendant to renew plaintiff's contract.

The parties have agreed that certain letters and other documents which have been filed may be considered in ruling on the motion.

The State Board of Education, the Maryland State Teachers' Association, Inc., and the Prince George's County Teachers' Association, Inc., have been granted leave to participate as amici curiae, and have argued in support of defendant's motion for summary judgment.

Facts

The following facts are alleged in the complaint or appear from other papers before the Court:

On June 1, 1962, plaintiff was employed by the County Board as a teacher of psychology at the Northwestern Senior High School, effective August 28, 1962. The contract which he signed is in the usual form used in the counties of Maryland both for probationary teachers and teachers with tenure. It included the following relevant provisions:

"AND IT IS FURTHER AGREED that either of the parties to this contract may terminate it at the end of the first or second year by giving thirty days' notice in writing to the other during the month of June or July.

"* * *

"This contract shall continue from year to year, subject to the aforegoing conditions, provided that if the teacher, on the recommendation of the County Superintendent, is suspended by the County Board of Education in accordance with the provisions of Sections 64 and 102 of Article 77 of the Annotated Code of Maryland, 1957 Edition, said teacher shall have the right of appeal to the State Superintendent of Schools, if the decision of said board is not unanimous."

The complaint alleges that on or about March 15, 1963, plaintiff was called to the office of the principal of his school and told that a complaint had been made "as to his assigning the book entitled Brave New World by Aldous Huxley to his class, as assertedly atheistic, obscene, and immoral, and that a demand had been made that the plaintiff and the book be removed from the school".

It appears from one of the documents filed by plaintiff that Brave New World was included among a long list of books called "Student Reading List" in the "Curriculum Guide in Social Studies, Psychology", issued by the County Board to its psychology teachers. The following caution appears at the top of the list:

"It is essential in a psychology class that great care be taken in making book assignments. The nature of the content in this course makes it imperative for you as teacher to know both the book and the student before you make such an assignment. You must consider the maturity of the student as well as the mores in your school community in assigning material to be read. If you have not read the book, do not assign it to your students."

It further appears that the complaint with respect to the book had been made by the father of a girl in plaintiff's class.

The complaint alleges that on or about March 26 plaintiff was again called to the office of the principal and "advised that based on the complaints made relating to the entitled book mentioned above, his contract would be terminated at the end of the school year and not renewed. Plaintiff requested from defendant Board a statement of charges and a hearing for the purpose of being confronted by the evidence against him and being accorded an opportunity to rebut those charges, but received no response thereto." The complaint does not specifically allege what was done with respect to terminating the contract, but the letters filed by plaintiff in connection with the motion for summary judgment show that the situation was somewhat different from that alleged in the complaint, and that the termination of the contract was strictly in accordance with the provisions quoted above permitting either party to terminate the contract after the first or second year. On April 18, plaintiff's attorney wrote George H. Robinson, Assistant Superintendent of the Prince George's County Schools, claiming that his client's civil rights would be violated by the proposed termination and that the representations of the "third parties" who had complained to the principal, Reed, were defamatory. On April 29, Robinson replied that there had been no termination of the contract, but that in discussing the matter with plaintiff, he had advised plaintiff "that an assignment for the next school term is uncertain at the present time. Although the Board of Education is not required by law to notify teachers of this probability until June or July, I felt it might give Mr. Parker additional time to make his plans." He sent the attorney a copy of the contract.

The actual termination of the contract was by official action of the Board of Education taken at its meeting on July 2, 1963. Robinson informed Parker of this by a letter, set out below.²

Plaintiff thereupon brought an action in this Court for defamation against Martin E. Whipps, the father who had complained.³

Finally, plaintiff alleges that he has had difficulty obtaining employment as a teacher since July 1963.

Jurisdiction

Plaintiff claims jurisdiction under 28 U.S.C.A. § 1332 (diversity), § 1331 (federal question, under the First, Fifth and Fourteenth Amendments), § 1343 (civil rights), § 2201 (declaratory judgment) and 42 U.S.C.A. § 1983 (civil action for deprivation of rights). Diversity is alleged, and although questioned, is conceded for the purposes of this motion.

Although jurisdiction under some of the sections relied on is doubtful for various reasons (e. g. under 42 U.S.C. § 1983, since defendant is sued as a body politic, Maryland Code, Art. 77, sec. 50, Monroe v. Pape, 365 U.S. 167, 187, 191 n. 50, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)), it exists under 28 U.S.C.A. 1343(3), if the allegations are not frivolous. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L.Ed. 939 (1946).

A. The Maryland Law

The Public School Law of Maryland, Art. 77 of the Maryland Code (1957 ed.), provides that the county boards of education shall appoint all teachers (sec. 64), and that their "tenure * * * shall be determined by the county board of education" (sec. 159). Pursuant to this direction, and to a By-law of the State Board (By-law 14), the several county boards have adopted a uniform teachers' contract, which contains the provisions quoted above under the heading Facts. Sec. 64 specifies the circumstances under which an assistant teacher may be suspended or dismissed, namely for "immorality, misconduct in office, insubordination, incompetency, or wilful neglect of duty". Sec. 102 specifies similar circumstances under which teachers may be suspended or their certificates revoked. In connection with any dismissal or suspension for cause under these sections, the teacher is given the right to a hearing, and to an appeal to the State Superintendent.

Thus, teachers who have served more than two years in the school system have a right to a continuous tenure, from which they may be removed only for cause under the provisions of secs. 64 and 102. The first two years of their employment, however, are probationary only. Their contracts may be terminated at the end of either one of the probationary years with or without cause, and without a hearing. Dismissal or suspension of a probationary teacher during the term of either the first or second year, however, like a dismissal or suspension after tenure has been achieved, can only be for cause, after a hearing (if requested), pursuant to the provisions of secs. 64 and 102. This view is supported by County Board of Education for Washington County v. Cearfoss, 165 Md. 178, 187, 166 A. 732 (1933).

The standard teachers' contract, which permits termination without cause at the end of the first and second contract years, does not violate secs. 64 and...