Weathers v. West Yuma County School Dist. R-J-1

Decision Date25 February 1976
Docket NumberR--J--1,No. 75--1134,75--1134
Citation530 F.2d 1335
PartiesDonald WEATHERS, Plaintiff-Appellant, v. WEST YUMA COUNTY SCHOOL DISTRICTet al., Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Michael H. Gottesman, Washington, D.C. (Robert L. Weinberg and David Rubin, Washington, D.C., Larry F. Hobbs, Denver, Colo., on the brief), for plaintiff-appellant.

Gerald A. Caplan, Boulder, Colo. (Richard E. Bump, Boulder, Colo., and Reese Miller, Denver, Colo., on the brief), for defendants-appellees.

Before BREITENSTEIN, HILL and BARRETT, Circuit Judges.

HILL, Circuit Judge.

Appellant Donald Weathers seeks reversal of the judgment against him in this suit arising under 42 U.S.C. §§ 1983 and 1985. This action results from the nonrenewal of appellant's teaching contract by the school board acting on behalf of the school district.

Appellant began teaching in appellee school district under a one-year contract beginning on August 25, 1970. The contract was renewed in the spring of 1971 for a term ending August 24, 1972. When the board met in February, 1972, for preliminary discussions concerning reemployment of probationary teachers, of whom appellant was one, certain communications from students and students' parents regarding appellant were discussed. The next day appellant's principal informed him that he might not be renewed. The reasons for nonrenewal as discussed at the board meeting were disclosed to appellant by the principal. These reasons were contained in the following note which the principal had taken at the meeting; appellant was given a copy.

Swore or called a boy a bad name after the Brush game

Has too much busy work in class that doesn't figure into grade

Student prepared a 3-page assignment, handed it in and wasn't look(ed) at In group contest discussion, total group gets the same grade, regardless of degree of participation by individuals. 1

The board president met with appellant the following day and appellant sought to discover who had made the complaints. The board president did not disclose the complainants' identities.

On February 29, 1972, appellant met with the board which was in executive session. Appellant attempted to explain his conduct; he denied using profanity and explained his teaching methods and grading procedures. On March 9, 1972, the board unanimously voted not to renew appellant's contract. Appellant received a letter from the board stating in part:

After evaluation of your over-all performance a unanimous vote was cast not to re-employ you for the coming 1972--73 school year.

Subsequent efforts by the West Yuma Education Association to gain a formal board hearing to reconsider the nonrenewal decision were rejected by the board.

Suit was brought against appellees, the school district and the board members in their individual and official capacities. In his complaint, appellant alleged, inter alia, (1) procedural violations (no written notice of the reasons for nonrenewal and no full and fair hearing) which deprived him of property and liberty without due process of law and (2) arbitrary, unreasoned action by appellees in terminating him ('not supported by substantial evidence, wholly unsupported in fact'). The trial court determined that appellant had no property or liberty interest under the facts of this case and that the lack of either of those interests prevented the board's decision, even if patently unfair, from attaining constitutional significance. Weathers v. West Yuma County School Dist. R--J--1, 387 F.Supp. 552 (D.Colo.1974).

Initially, we note the context of this case. Appellant was a nontenured (probationary) teacher; the two contracts he was employed under contained specified terms. He has not alleged his nonrenewal His first claim is proper procedures were not followed in making the decision to nonrenew his contract. This contention is grounded in the Fourteenth Amendment which provides in pertinent part: '. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . ..' As the Supreme Court said in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972):

was for constitutionally impermissible reasons. 2

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

Thus, to sustain appellant's claim of denial of due process, a liberty or property interest must be present to which the protection of due process can attach. E.g., Abeyta v. Town of Taos, 499 F.2d 323 (10th Cir. 1974).

PROPERTY INTEREST

Appellant's lack of formal tenure does not rule out the existence of the requisite property interest. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The trial court correctly recognized that property interests can result from implied agreements or statutory or administrative procedures governing nonrenewal. Perry v. Sindermann, supra; Burdeau v. Trustees of California State Colleges, 508 F.2d 770 (9th Cir. 1974). The trial court, however, determined appellant possessed no statutory or contractual right of continued employment and no informal custom or policy of reemployment was shown. Consequently, appellant did not show an objective expectation of continued employment and did not possess a property interest protected by the Fourteenth Amendment.

On appeal, appellant relies upon one school board policy to establish his property interest. This policy, designated Paragraph 2.8, is located in Section II, entitled 'Board of Education'. The policy reads as follows:

Complaints to Board Members

Individuals or groups often confront a single board member with issues which usually should be handled by the Superintendent of Schools. In those instances of apparent exception, it is suggested that the board member withhold an expression of opinion or commitment until the matter has been presented to the Board of Education. It is often wise for the board member to postpone the formulation of his own opinion until he has had the benefit of hearing the issue discussed by the Board of Education where other aspects of the problem are considered. A board member should not obligate other members of the Board of Education by predicting how they will vote on any issue.

In carrying out the policy for the handling of complaints the Board will, therefore, observe the following procedure. Neither the Board of Education as a unit nor any individual member will entertain or consider communications or complaints from teachers, parents, or patrons, until they have first been referred to the Superintendent of Schools. Only in those instances where satisfactory adjustment cannot be made by the Supreintendent and his assistants, shall communications and complaints be referred to the Board. After hearing evidence submitted by the Superintendent, in such event, the Board of Education will, if it deems advisable, grant a hearing to Appellant argues this policy was not complied with because the complaints against appellant were not referred to the superintendent. Appellant contends this policy provided him an objective expectancy that he would not be denied renewal because of parental complaints without a prior administrative effort to adjust such complaints. The trial court did not comment directly on Paragraph 2.8. The court did say, 'The conspicuous omission of any procedures for making nonrenewal decisions in cases of probationary teachers distinguishes this case from the precedents cited by plaintiff.'

the parties interested. Such a hearing may be held during executive session of the Board.

Appellees argue, on appeal, that this policy merely established a procedure for handling complaints or issues raised by parents, teachers or patrons. They say the policy sought to regulate board of education conduct in relation to such complaints and the policy did not relate directly to employment of dismissal.

Appellant contends that although the government might be free to dismiss employees without procedural safeguards, once it establishes such safeguards by regulation it must adhere to them. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). Paragraph 2.8, however, does not set forth any procedure relating to nonrenewal or termination. Thus, the above precedents are inapplicable.

Also, this case is far removed from the Perry v. Sindermann, supra, situation where the Court determined certain rules and understandings might constitute a de facto tenure. In the instant case, a specific board policy dealt with termination of nontenured personnel. It provided as follows:

The Board may refuse to renew the contract of any probationary teacher for cause or without cause. In the event a teacher is not to be employed for the succeeding year, the Board shall cause written notice to be given the teacher on or before the fifteenth (15th) day of April. (Emphasis added.)

Paragraph 2.8 does not establish de facto tenure to any extent; this conclusion seems particularly supported by the existence of the policy governing renewal of probationary teachers' contracts, which provides for nonrenewal 'with or without cause.' The communications at issue were generally addressed to the question of renewal itself. 3 It is doubtful Paragraph 2.8 was intended to prevent the board from directly receiving and considering communications of this nature. Moreover, the 'without cause' provision negates an objective expectancy that the board would not consider communications of this nature unless shunted through the Paragraph...

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