Thaw v. Board of Public Instruction of Dade Co., Fla., 29488 Summary Calendar.
| Decision Date | 26 October 1970 |
| Docket Number | No. 29488 Summary Calendar.,29488 Summary Calendar. |
| Citation | 432 F.2d 98 |
| Parties | Robert THAW, Plaintiff-Appellant, v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, FLORIDA, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Tobias Simon, Miami, Fla., for plaintiff appellant.
Samuel S. Forman, Bolles, Goodwin, Ryskamp & Ware, P. A., Miami, Fla., for defendants-appellees.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied October 26, 1970.
The sole question before the Court on this appeal is whether a probationary teacher is entitled to a hearing upon a School Board's nonrenewal of his contract when the teacher fails to allege the violation of a constitutionally protected interest by the Board's action.
Robert Thaw, the appellant, was in his third year of teaching for the Dade County School Board under an annual contract, and was eligible for a "continuing contract" tantamount to "tenure" beginning with the fourth year providing he met the requirements of Section 231.36 of the Florida Statutes, F.S.A. One of the requirements of this statute is that a teacher be "recommended by the county superintendent for * * * a continuing contract based on successful performance of duties and demonstration of professional competence. * * *" During this third year of service, the principal of the school where Mr. Thaw was employed recommended that Mr. Thaw "be separated" at the end of his probationary status and that he not be awarded a continuing contract because "on many occasions Mr. Thaw * * * left his class for a period of time * * * and in several instances ignored the school's disciplinary procedures." Following this recommendation, the Board of Public Instruction withheld reappointment for the fourth year.
Mr. Thaw asked the court below, and he now asks this Court, to require the Dade County Board of Public Instruction to grant him a hearing on the nonrenewal of his contract at which he may have an opportunity to refute the charges against him. The district court held against Thaw, on the school board's motion to dismiss. We do not believe that on the facts of this case a school board should be required to hold a hearing, and we therefore affirm.
The authority in this Circuit requires school boards to provide notice and hearing before dismissing a public schoolteacher or college professor in either of two types of cases. The first type is that of a schoolteacher who has "tenure" or a reasonable expectation of reemployment. Ferguson v. Thomas, 5th Cir. 1970, 430 F.2d 852. A public schoolteacher falling into this category may not be dismissed unless the school board first affords him a hearing at which the reasons for his termination are stated and the teacher is given an opportunity to refute the charges against him. This basic requirement protects the public schoolteacher who has been led to expect that he will be reemployed from being arbitrarily dismissed.
The second type of case in which a school board has been required to provide a hearing is that of a schoolteacher who has no tenure or expectancy of reemployment, but who asserts that he has been dismissed for constitutionally impermissible reasons, either solely because of race or religion, or because he has attempted to exercise his first amendment rights. Pred v. Board of Public Instruction, 5th Cir. 1969, 415 F.2d 851.
The schoolteacher in the instant case falls into neither of these categories. He offers no proof of any reasonable expectation of reemployment under the Florida statute, and he clearly has no tenure. Rather, appellant concedes in his brief that he is a "probationary" teacher. As a matter of fact, appellant is in exactly the same position as the schoolteachers in Pred, supra. They, too, were employed under the terms of the same Florida statute, and were working for the Dade County Board of Public Instruction in their third and final year of probation. We expressly stated in that case that under such circumstances no right to reemployment exists. The right protected in Pred was rather a constitutional right, and this is the critical distinction between...
To continue reading
Request your trial
-
Harkless v. SWEENY IND. SCH. DIST. OF SWEENY, TEXAS
...a school board to hold a hearing every time it determines not to renew the contract of a probationary teacher. Thaw v. Bd. of Pub. Instruction, 432 F.2d 98 (5th Cir. 1970). This is especially true when the termination of an employee is for ostensibly non-constitutional reasons and where the......
-
Hayes v. Cape Henlopen School District, Civ. A. No. 4019.
...415 F.2d 851 (5th Cir. 1969) (hearing if alleged dismissal based on constitutionally impermissible reasons); Thaw v. Bd. of Public Instruction, 432 F.2d 98 (5th Cir. 1970) (no hearing if non-tenured, no expectancy of re-employment, and no constitutionally impermissible reason for dismissal)......
-
Drummond v. Fulton County Dept. of Family and Children's Services
...1073 (5th Cir.), this Court said: "With respect to the requirement of a hearing and the adequacy thereof, in Thaw v. Board of Public Instruction, 432 F.2d 98, 99 (5th Cir. 1970), this Court stated that a school board is required to provide notice and hearing before dismissing a public schoo......
-
Orr v. Trinter
...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. Moreover, several District Courts, in ......