Wheeler v. School Dist. No. 20, in El Paso County

• Decision Date: 14 April 1975
• Docket Number: No. C--502,C--502
• Parties: Max J. WHEELER, Petitioner, v. SCHOOL DISTRICT #20, IN the COUNTY OF EL PASO and State of Colorado, et al., Respondents.
• Court: Colorado Supreme Court

Page 206

535 P.2d 206

188 Colo. 262

Max J. WHEELER, Petitioner, v. SCHOOL DISTRICT #20, IN the COUNTY OF EL PASO and State of

Colorado, et al., Respondents.

No. C--502.

Supreme Court of Colorado, En Banc.

April 14, 1975.

Rehearing Denied May 19, 1975.

Hobbs & Waldbaum, Larry F. Hobbs, Denver, for petitioner.

Horn, Anderson & Johnson, R. E. Anderson, Colorado Springs, for respondents.

HODGES, Justice.

Following numerous complaints from teachers and parents concerning the discipline at the junior high school at which petitioner Wheeler was principal, he was transferred from this position by the school board. As a tenured teacher, he was assigned to teach at an elementary school. Petitioner challenged these actions in the district court of El Paso County, which after trial entered a judgment upholding the actions of the school board and dismissing the petitioner's complaint. That judgment was appealed to the Colorado Court of Appeals which affirmed the trial court's judgment in Wheeler v. School Dist. No. 20, Colo.App., 521 P.2d 178 (1974). We granted certiorari for the sole purpose of considering the petitioner's contention that his constitutional rights had been violated by the actions of the school board. We affirm.

I.

The petitioner contends that he has a due process right to notice and a hearing prior to his transfer from the position of principal to the teaching position. Petitioner recognizes this court's decision of Draper v. School District No. 1, 175 Colo. 216, 486 P.2d 1048 (1971), but asserts that Draper can retain no vitality following the United States Supreme Court decisions of 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).

In Draper, the plaintiff, who had been an elementary school principal, was transferred to the position of teacher, at a teacher's salary. In that case, we determined that C.R.S.1963, 123--18--5, since repealed, did not provide for notice and a hearing where a teacher was returned from an administrative position to a teaching position. We indicated that

'. . . the legislative intent clearly was to make a return from administration to teaching a matter of subjective determination of the board as to whether the teacher in question was performing satisfactorily in the administrative job.'

Draper did not involve the issue of procedural due process, but as the United States Supreme Court's exposition of procedural due process has evolved, Draper is ultimately determinative of this case.

In Roth, supra, the respondent had been hired for a fixed term of one academic year at a Wisconsin university. At the end of that year, he was informed that he would not be rehired for the ensuing academic year. Under Wisconsin statutory law, respondent had no tenure rights. When the State declined to hire respondent, it did not base the nonrenewal of his contract on any charge that would injure his good name, reputation, honor or integrity. Accordingly, the Supreme Court of the United States determined that Roth had neither a property nor a liberty interest in his re-employment. Under these circumstances, Roth did not have a right to notice of the reason for his nonretention and an opportunity for a hearing.

In the companion case of Perry v. Sindermann, Supra, the Supreme Court of the United States found that Sindermann did have a right to a hearing at which he was to be informed of the grounds for his nonretention and afforded an opportunity to challenge their sufficiency. But in Sindermann, the plaintiff was covered by an informal tenure provision which he alleged was the equivalent of tenure. The Supreme Court agreed that this interest could amount to a property interest in continued employment if plaintiff could demonstrate the existence of a mutually explicit understanding that supports his claim of entitlement to the benefit. Additionally, the plaintiff had alleged that the nonrenewal of his contract was predicated on grounds that would violate his First Amendment rights of free speech.

In the case at bar, petitioner Wheeler was transferred from his job as principal of a junior high school to a position as an elmentary school teacher. We note from the record that there was evidence that the school board by its action made it clear to the petitioner why they deemed necessary the change in his status with the school district. A thorough review of the statutes governing tenure indicates that the plaintiff had tenure as a teacher in the school district, but his position as principal was not so protected. This was the explicit holding of Draper:

'The Teacher Tenure Act, however, does not give anyone holding an administrative position tenure in such a position.'

The result is the same under the new Colorado statute. Indeed, the statute provides for the transfer of an administrator to any teaching job for which he is qualified. Section 22--63--114(2), C.R.S.1973. See also, C.R.S.1963, 123--18--5, repealed in 1967. Therefore, under Colorado statutes and the holding in Draper, it is clear that petitioner did not have a mutually explicit understanding that supports his claim of entitlement to the benefit which is necessary before the petitioner here could claim a property interest in continued employment as principal.

Petitioner insists that the rationale of Perry v. Sindermann, Supra, has been extended to situations involving demotions, but the cases he cites are not in point. In Acanfora v. Board of Education, 359 F.Supp. 843 (D.Md.1973) aff'd, 491 F.2d 498 (4th Cir. 1974), the procedural due process argument advanced was specifically abandoned by the...