Ryan v. Aurora City Bd. of Ed.

• Decision Date: 02 August 1976
• Docket Number: No. 75-2067,75-2067
• Citation: 540 F.2d 222
• Parties: Steven RYAN et al., Plaintiffs-Appellants, v. AURORA CITY BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 222

540 F.2d 222

Steven RYAN et al., Plaintiffs-Appellants, v. AURORA CITY BOARD OF EDUCATION et al., Defendants-Appellees.

No. 75-2067.

United States Court of Appeals, Sixth Circuit.

Argued March 29, 1976.

Decided Aug. 2, 1976.

John T. DeFazio, Green, Schiavoni, Murphy & Haines, Youngstown, Ohio, Jerry D. Anker, Lichtman, Abeles, Anker & Nagle, Washington, D. C., for plaintiffs-appellants.

James H. Woodring, John F. Lewis, John T. Meredith, Squire, Sanders & Dempsey, Cleveland, Ohio, John G. Burkholder, Means, Bichimer, Burkholder & Baker Co., Columbus, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, and WEICK and ADAMS, ^* Circuit Judges.

PHILLIPS, Chief Judge.

This appeal presents the recurring problem of non-tenured teachers whose contracts of employment are not renewed and who claim due process rights under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Plaintiffs Ryan, Miller, Felber and Touby were non-tenured public school teachers employed by the Aurora, Ohio, school system under limited contracts of varying duration, all of which expired at the end of the 1972-73 school year. On April 25, 1973, the Aurora City Board of Education (the Board), acting pursuant to § 3319.11 of the Ohio Revised Code, ¹ voted not to renew their contracts.

Consistent with this statutory provision, the Board did not provide plaintiffs a hearing, nor did it give any reasons for its action. District Judge William K. Thomas concluded that the Board's regulations, which provided for written reasons to be given to the teachers whose contracts were not renewed, does not create an "expectancy of continued employment" where the teachers are non-tenured under Ohio law. We hold that a teacher who is non-tenured under state law does not have a "legitimate claim of entitlement" to continued employment within the meaning of Roth and Sindermann. Accordingly, we affirm the District Court.

I.

Plaintiff Steven Ryan had been employed in 1967 as a science teacher in the Aurora Middle School (grades 6, 7 and 8) on a one year contract. In 1968, he was re-employed on a five year limited contract. Plaintiff Joan Felver had been first employed to teach home economics in 1966 in the high school under a one year limited contract. Thereafter, she had been re-employed to teach the same subject on additional limited contracts for one year, two years, three years and one year. Plaintiff James Miller, hired first in 1968, had taught mathematics in the middle school under five successive one year limited contracts. Plaintiff Clair R. Touby had been employed in 1971 to teach music in both the high school and elementary school. He had two one year contracts.

During a specially scheduled public meeting on April 25, 1973, the Board took up the subject of the non-renewal of the plaintiffs' contracts. A two hour discussion followed in which the public participated. At the conclusion of the discussion the Board unanimously adopted the following resolution: "(It is moved that) consistent with section 3319.11 of the Ohio Revised Code, the (designated) teachers be notified that their contracts which expire at the conclusion of the 72/73 school year, not be renewed." In voting not to renew these contracts, the Board followed the recommendation of Superintendent of Schools Paul Snyder. Pursuant to § 3319.11 of the Ohio Revised Code, each plaintiff was given written notification before the 30th day of April, 1973. In a letter dated April 26, 1973, the Board's clerk-treasurer informed each plaintiff of the Board's: "intention not to re-employ you at the expiration of your current limited contract as teacher in the schools of this district consistent with Section 3319.11 of the Revised Code of Ohio."

Ohio, like many other states, has enacted statutes under which tenure rights may be conferred upon teachers after a period of probationary employment. In Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767 (1972), in construing the same Ohio statutes that are before us in the present case, this court said:

(W)e emphasize that an essential feature of State teacher tenure laws is to require a teacher to serve a probationary period before attaining the rights of tenure. State statutes prescribe the rights of tenured teachers to written charges, public hearings and judicial review. The determination as to whether the quality of services of a particular teacher entitles him to continued employment beyond the probationary period, thereby qualifying him for tenure status, or whether his contract of employment should not be renewed prior to attainment of tenure status, is the prerogative of the employer, the Board of Education. 444 F.2d at 135.

Under Ohio Rev.Code § 3319.08, contracts for the employment of teachers are of two types, limited contracts (non-tenured) and continuing contracts (tenured). This section further provides:

A continuing contract is a contract which shall remain in effect until the teacher resigns, elects to retire, or is retired pursuant to section 3307.37 of the Revised Code or until it is terminated or suspended and shall be granted only to teachers holding professional, permanent, or life certificates.

Section 3319.16 makes termination of any contract during its term subject to cause. Accordingly, since "continuing contracts" are of indefinite duration, this provision has the effect of conferring tenure on teachers with "continuing contracts."

Section 3319.11 defines requirements and procedures for renewal and non-renewal of limited contracts and for initially acquiring continuing contract status. The statute delineates only three situations recognized by Ohio law in which a teacher whose limited contract is about to expire can acquire a right to re-employment without action by the Board to offer continued employment. Limited contract teachers who meet eligibility requirements (e. g., years of service, appropriate teaching certification) for continuing contracts, have a right to re-employment on a continuing contract if: (1) the superintendent recommends a continuing contract and the Board fails to reject this recommendation by a three-fourths vote and to notify the teacher to that effect by April 30; or (2) the Board fails to send notice with reasons by April 30 of its action on a recommendation by the superintendent that the teacher be offered another limited contract rather than a continuing contract. A teacher employed under a limited contract, and not eligible to be considered for a continuing contract, can acquire a right of re-employment on a limited contract only if the Board fails to send written notice by April 30 (without reasons) of its decision not to renew the teacher's limited contract. (Section 3319.11 quoted in n. 1.)

Appellants do not claim the above specific statutory tenure scheme confers rights on them. They assert, however, that the Board's regulations contained in a 1965 Policy Manual gave them a "property" interest in their jobs. Appellants rely on the following provisions of the Policy Manual to support their allegation of implied tenure:

2. Chapter II. Instructional Personnel.

A. Administrative Organization

2. Principals

(b) General Duties

(c) Specific Duties

(11) Hold at least one conference and one classroom visit each year with teacher personnel, in regard to their individual growth contribution to the educational program and making such suggestions for continuous improvement as necessary and reporting such conferences in writing to the conferees. If a person's work is unsatisfactory, specific suggestions for improvement shall be made in the conference report. Subsequent written reports shall confirm progress made and provide a basis for reappointment. The superintendent shall receive "The Teacher Evaluation Sheet" from the evaluation report for each teacher with the principal's recommendation for reappointment or dismissal by March 1 of each year. Any teacher recommended for dismissal must have been clearly informed of his status by the superintendent and completely aware that such a recommendation is being made with definite reasons for same.

Chapter III. Duties and Responsibilities of Instructional Staff.

4. Contracts

(e) Teachers who are not to be reappointed shall be given the reasons and notified in writing by the clerk-treasurer of the school district as confirmed by the board of education on or before April 30. Such written notice to the teacher on non-re-employment shall not be necessary provided that the teacher, after having consulted with the superintendent of the schools, shall give to the board of education before April 30 a letter asking that he not be reappointed. All teachers not so notified shall be considered reappointed. (emphasis added).

In Orr this court recognized that a due process hearing must be accorded a non-tenured teacher if his contract is not renewed because he exercised his rights of free speech as guaranteed by the first amendment; or if the non- renewal is in violation of the self-incrimination clause of the fifth amendment, the due process clause of the fifth or fourteenth amendment, or the equal protection clause of the fourteenth amendment. Accord: Hatton v. County Board of Education, 422 F.2d 457 (6th Cir. 1970); Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968). We said: "These are constitutionally impermissible reasons for refusal to rehire a teacher." 444 F.2d at 134.

The present case, however, does not invoke a question of free speech, self-incrimination, or equal protection. Rather, the appellants are alleging a fourteenth amendment procedural due process violation on the argument that the Board's regulations have created a "property" interest in their employment under the authority of Roth and Sindermann. In particular, they argue the regulations of the board contain a...