Smith v. Board of Educ. of Urbana School Dist. No. 116 of Champaign County, Ill., 81-2877

Decision Date13 May 1983
Docket NumberNo. 81-2877,81-2877
Parties11 Ed. Law Rep. 789 Warren G. SMITH and John Gremer, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF URBANA SCHOOL DISTRICT NO. 116 OF CHAMPAIGN COUNTY, ILLINOIS, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Jeffrey D. Frederick, Johnson, Frank & Frederick, Urbana, Ill., for plaintiffs-appellants.

Joseph W. Phebus, Phebus, Tummelson, Bryan & Know, Urbana, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and HOFFMAN, Senior District Judge. *

CUMMINGS, Chief Judge.

Plaintiffs Warren Smith and John Gremer are physical education teachers in a public high school in Illinois. Each was also formerly the head coach of one of the school's athletic teams. Smith was head coach of the school's football team for 26 consecutive years; Gremer was head coach of the school's baseball team for 3 consecutive years. In the summer of 1979, the board of education for the state school district in which the high school is situated ("the school board") notified each that it would continue to employ him as a physical education teacher for the following school year but that it would not reemploy him as an athletic coach. In addition, several members of the school board made public their opinion that a change in coaches would be good for the school's athletic program. Plaintiffs kept their teaching jobs and demanded that they be reinstated to their former coaching positions. The school board refused and some two years later plaintiffs commenced this suit for reinstatement and damages in federal district court under 42 U.S.C. Sec. 1983 against the school board, its members, and the superintendent of the surrounding school district.

Plaintiffs' amended complaint consists of 24 Counts containing federal and pendent state claims. Only six Counts are before us on appeal. Plaintiffs' first federal claim (Smith Count I and Gremer Count VII) is that the Fourteenth Amendment required the school board to conduct a hearing before it replaced them as coaches because an Illinois statute gave them tenure in their coaching positions. Presumably the purpose of such a hearing would have been to provide plaintiffs an opportunity to show that the school board had no good reason to replace them. Plaintiffs' second federal claim (Smith Count XXI and Gremer Count XXIII) is that even if they did not enjoy statutory tenure as coaches, they had at least "a reasonable expectation of re-employment," de facto tenure, entitling them to such a hearing before discontinuing their employment. Plaintiffs' final appealed claim (Smith Count XXII and Gremer Count XXIV) is that the Fourteenth Amendment prohibited members of the school board from telling the public that a change in coaches would help the school's athletic program without first conducting a hearing. Presumably the purpose of this hearing would have been to provide plaintiffs an opportunity to prove that they were good coaches and that replacing them would not improve the school's athletic program.

Defendants responded to plaintiffs' complaint by filing a Federal Civil Procedure Rule 12(b)(6) motion to dismiss for failure to state a claim for relief. Without comment, except for a reference to defendants' supporting memoranda, the district court granted defendants' motion and plaintiffs have appealed as to the six Counts noted. For the reasons that follow, we affirm.

I. Plaintiffs Had No Statutory Tenure in Their Coaching Positions

The Fourteenth Amendment due process clause does not guarantee a football or baseball coach a job at a public high school even if his teams always win and his players idolize him. The ultimate decision who is the best man to coach a state high school athletic team rests with state school officials, not with the federal courts. Bishop v. Wood, 426 U.S. 341, 344, 349-350 n. 14, 96 S.Ct. 2074, 2077, 2079-2080 n. 14, 48 L.Ed.2d 684; Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sinderman, 408 U.S. 593, 602 n. 7, 92 S.Ct. 2694, 2700 n. 7, 33 L.Ed.2d 570; id. at 603-604, 92 S.Ct. at 2700 (Burger, C.J., concurring). At most, the Fourteenth Amendment due process clause guarantees a state athletic coach the right to know why he is being dismissed and to convince school officials before they dismiss him that they are making a mistake, that their reasons for dismissing him are either not supported by facts or less compelling than they think.

Not every state employee enjoys those rights. The Fourteenth Amendment prohibits the deprivation, without due process of law, of a person's "life, liberty, or property"; not every state employee who is dismissed from employment is thereby deprived of his "life, liberty, or property." Liberty is freedom from too much government, not financial well-being. A state government that dismisses one of its employees does not, without more, deprive him of his liberty. Board of Regents v. Roth, 408 U.S. 564, 572-574, 92 S.Ct. 2701, 2706-2707, 33 L.Ed.2d 548. Nor does it deprive him of his "property" unless the state earlier conferred upon him a right of continued employment by telling him, in a manner that made it reasonable for the employee to expect the state to stand behind its word, that it would continue to employ him. Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570; cf. Hewitt v. Helms, --- U.S. ----, ----, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) ("But on balance we are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest" in remaining in a general prison population rather than in administrative segregation). Thus unless plaintiffs had some right under Illinois law to keep their coaching jobs--unless the State, through its legislature or through the school board, told them, conditionally or unconditionally, that it would retain them as coaches and unless it was reasonable for them to expect the school board to retain them as coaches--plaintiffs had no right under the Fourteenth Amendment to any sort of hearing prior to their dismissal as coaches.

Plaintiffs allege in Counts I and VII of their complaint that the Illinois School Code, Ill.Rev.Stat. ch. 122, art. 24 (1981), gives them a right of property in their coaching positions. Section 24-11 of that Code, Ill.Rev.Stat. ch. 122, p 24-11 (1981), confers job tenure--the right to continue working until age 70 under an existing employment contract--upon any "teacher" employed full time for three consecutive years in an Illinois school district. The section defines "teacher" as any "school district employee[ ] regularly required to be certified under laws relating to the certification of teachers."

Coaches do not fit within this definition. There is no Illinois law requiring that high school football and baseball coaches be certified as possessing certain minimum qualifications. In fact, Section 10-22.34a of the Illinois School Code--entitled "Supervision of non-academic activities"--expressly empowers school boards "[t]o designate non-certificated persons of good character to serve as supervisors, chaperones or sponsors either on a voluntary or on a compensated basis, for school activities not connected with the academic program of the schools." The baseball and football teams are not "connected with" the academic program at plaintiffs' high school. The State Board of Education does not require that Illinois public high schools offer their students courses in how to play football and baseball (see State Board of Education, Document # 1: The Illinois Program for Evaluation, Supervision, and Recognition of Schools, Sec. 4-4 (1977)), and the exhibits attached to the complaint indicate that the football and baseball teams are not part of the curriculum at plaintiffs' high school. Students enrolled in courses that are part of the school's curriculum play on the football and baseball teams, and the teams may practice and play their games on school grounds, but that is not enough to make the school's athletic program "connected with" the school's academic program. An Illinois appellate court has held that school districts may employ non-teachers to supervise lunch periods in school cafeterias. Ambroggio v. Board of Education, 101 Ill.App.3d 187, 56 Ill.Dec. 622, 427 N.E.2d 1027 (2d Dist.1981). And the State Board of Education has construed the phrase "not connected with" to mean "not directly connected with" (Illinois State Board of Education, Rules & Regulations to Govern the Certification of Teachers, Rule 13.02 (1980) (emphasis in original)) and gives as an example of an activity not connected with a school's academic program the use of "[p]laygrounds, during free play and not during part of an organized physical education period." Plaintiffs do not allege that students in their physical education classes were required to play on the baseball and football teams. Had it wanted, the school board could have hired to supervise the conduct of students attending school baseball and football games persons not certified to teach any of the courses of study comprising its academic program. District 300 Education Association v. Board of Education, 31 Ill.App.3d 550, 334 N.E.2d 165 (2d Dist.1975). If it can hire non-certified persons to supervise students watching an athletic contest, it can hire non-certified persons to coach students participating in an athletic contest. There is no evidence that the Illinois legislature was concerned more that students learn how to swing a baseball bat and throw a football than that they learn to behave civilly at public functions.

But the school board hired plaintiffs and plaintiffs are certified to teach physical education. Therefore plaintiffs qualify as "teachers," as defined in Section 24-11 of the School Code, and ...

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