White v. South Park Independent School Dist.

Citation693 F.2d 1163
Decision Date20 December 1982
Docket NumberNo. 82-2069,82-2069
Parties30 Fair Empl.Prac.Cas. 1799, 30 Empl. Prac. Dec. P 33,259, 7 Ed. Law Rep. 787 Jack WHITE, Plaintiff-Appellant, v. SOUTH PARK INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Larry Watts, Houston, Tex., for plaintiff-appellant.

Tanner T. Hunt, Jr., Beaumont, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before GEE, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

Appellant, Jack White, brought this civil rights action under 42 U.S.C. Secs. 1983, 1988 (1976 & Supp. IV 1980), alleging racial discrimination and violations of his first amendment and due process rights. The district court entered a final judgment in favor of the defendants on the basis of the findings of fact and conclusions of law of the Texas Education Commission and awarded attorneys' fees in the amount of $2500 to the defendants. White then filed this appeal. For the reasons set forth below, we affirm the judgment except for the portion awarding attorneys' fees to the defendants, which we reverse.

I. FACTS AND PROCEDURAL BACKGROUND.

White was employed as a coach and teacher by the South Park Independent School District for over six years under three two-year contracts before his termination. After he received a less-than-satisfactory evaluation by the athletic director, John Adams, in the spring of 1977, he was offered and accepted, under protest, a one-year contract. In November 1977, after a meeting with Adams in the office of the principal, Joe Bryant, concerning White's complaints about poor equipment, White broke down and cried and allegedly threatened to kill athletic director Adams. About three weeks later, he had a minor confrontation with his assistant coach, Soileau, during a basketball game. This led to a meeting on November 28, 1977, among Bryant, Soileau, Adams and White. After Adams left, White again allegedly threatened to kill Adams. A few minutes later, Bryant and assistant principal Clifford Ozan, who had originally hired White, left the office and walked out to the school parking lot where they encountered White. White again allegedly threatened to kill Adams, Soileau and another teacher, Durley.

The superintendent sent White written notice of charges against him and a recommendation of termination. White requested and obtained a hearing before the school board. After one request for a continuance by White's attorney had been granted, the board held a hearing in December at which neither White nor his attorney appeared. On the morning of the hearing, White's attorney had informed the board that he could not attend because he had to appear in federal court. The board accepted the recommendation of the superintendent.

White appealed the board's decision to the State Commission of Education. A second hearing was held before a hearing officer, who rendered a written recommendation which included findings of fact. The Commission denied the appeal on the basis of the hearing officer's recommendation.

Almost two years later, White filed this suit in federal district court against various school officials, alleging racial discrimination, first amendment violations and due process violations. The parties submitted the case to the district court on the record of the Commission and other stipulated evidence. The district court entered final judgment, adopting the findings of fact and conclusions of law of the Commission without elaboration, and awarded attorneys' fees in the amount of $2500 to the school defendants because it found that "the suit was frivolous and without merit, and was brought solely to harass and embarrass the Defendants." Record at 102. White appealed.

II. DUE PROCESS.

White claims that the school board violated his due process rights: (1) by its failure to grant him a hearing when it renewed his contract for one year rather than the usual two, and (2) by its refusal to grant him a second continuance of his termination hearing and its decision to hold the hearing in his and his lawyer's absence. We hold that the district court was correct in adopting the State Education Commission's conclusion that neither action violated White's due process rights. 1

White was entitled to a hearing on the failure to renew his contract for two years under the due process clause of the fourteenth amendment only if he had a protected property interest in the renewal of the two-year contract. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). 2 The question whether White had a property interest must be determined with reference to state law. Bishop, supra, 426 U.S. at 344, 96 S.Ct. at 2077; White v. Mississippi State Oil & Gas Board, 650 F.2d 540 (5th Cir.1981). In Texas, an independent school district may adopt the continuing contract provisions of the Texas Education Code, Tex.Educ.Code Ann. Secs. 13.101 et seq. (Vernon 1972), thereby creating the possibility of tenure for its employees, or it may offer fixed term contracts pursuant to Tex.Educ.Code Ann. Sec. 23.28 (Vernon 1972 & Supp.1982). The decision concerning which system to adopt is within the individual school district's discretion. Carl v. South San Antonio Independent School District, 561 S.W.2d 560, 563 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.). Further, the mere fact that a teacher has been previously rehired is not evidence that there is an implied contract to renew the employment agreement every year. Bowen v. Calallen Independent School District, 603 S.W.2d 229 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.), Hix v. Tuloso-Midway Independent School District, 489 S.W.2d 706, 710 (Tex.Civ.App.--Corpus Christi 1973, writ ref'd n.r.e.).

The record supports the Commission's finding that the South Park Independent School District had not adopted the continuing contract provisions of the Texas Education Code, supra, and White has made no showing that he had de facto tenure. The previous contracts, on their face, dealt only with fixed terms of employment and conditions for dismissal during the time that the teacher was under contract with the district. No mention was made of any promise of renewal. Similarly, the written policies and regulations of the Board establish a procedure for the dismissal of an employee, but say nothing about the decision to renew a teacher's contract. Since White has not demonstrated that he had any property interest in the renewal of his contract, the school board was not required to grant him a hearing before offering him a contract for one year rather than two.

The board does not challenge White's entitlement to due process concerning the decision to terminate him before his contract had expired, but argues instead that the procedure afforded White complied with the requirements of the Constitution. White contends that the board's refusal to grant him a second continuance of his termination hearing and the board's decision to hold the meeting in his absence deprived him of his right to procedural due process.

We conclude, on the basis of the record before us, that the procedures followed by the school board in terminating White complied with the minimum requirements of due process as set forth in Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970). The board provided White with written notice of the charges against him sufficiently in advance of the hearing to enable him to prepare his defense. White and his attorney were offered an opportunity to examine the evidence, to present evidence and to cross-examine witnesses at a hearing before the board. White has made no showing that the board was not an adequate tribunal.

White's complaints about the failure to grant him a continuance and the decision to hold the meeting without him relate essentially to whether the board offered White an opportunity to present his defense at a reasonable time. 430 F.2d at 856. We cannot say that the board's actions were unreasonable under the circumstances of this case. The letter sent to White, rescheduling the hearing after he had requested his first continuance, stated that no other extension of time would be granted. 3 The board was still paying White his salary during this time even though he was suspended from classes and coaching. It had a legitimate interest in seeing an end to the delays in the proceedings. The board was not even informed of the need for a continuance until the morning of the hearing. 4

Even if the hearing before the board did not provide White an adequate opportunity to be heard in his defense, he was afforded a full de novo hearing and review by the Texas Education Commission, which affirmed the board's decision. Under these circumstances, we must agree with the district court that there was no violation of White's right to procedural due process.

III. THE ALLEGED VIOLATIONS OF SUBSTANTIVE CONSTITUTIONAL RIGHTS.

White contends that the board's decision to "demote" him by offering him a one-year contract as well as the decision to terminate him were improperly motivated by racial bias and by his exercise of his first amendment rights. 5 He claims that his criticism of the athletic program at the school, specifically his request for new basketballs and warm-up suits and his disagreement with an unsatisfactory evaluation, were substantial motivating factors in his termination. See Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

The Commission's recommendation adopted by the district court 6 made no specific finding as to whether the board's decisions were motivated by White's exercise of protected activity. 7 It concluded only that

1. [The board] in the exercise of its discretion may determine that...

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