Jesse Freeman v. The Gould Special School District of Lincoln County, Arkansas

405 F.2d 1153, 1969 U.S. App. LEXIS 9332, 1 Empl. Prac. Dec. (CCH) 9951, 2 Fair Empl. Prac. Cas. (BNA) 258

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 15, 1969
• Docket: 19016
• Status: Published

Opinions

FLOYD R. GIBSON, Circuit Judge.

Plaintiffs, six Negro school teachers, with the support of the Arkansas Teachers Association, Inc., seek to compel the defendant Gould Special School District to renew their annual teaching contracts and in addition request damages and attorneys’ fees against all the defendants.¹

In May 1967, the individual plaintiffs received notice from the defendant Gould Special School District that their teaching contracts would not be renewed for the 1967-1968 school term for teaching in the district’s all-Negro Field School. The notification was in accordance with requirements of Ark.Stat.Ann., § 80-1304 (b), whereby teachers’ annual contracts are automatically renewed unless notification in writing is made within a prescribed time to the contrary.

The Board’s decision not to renew the teaching contracts was based upon a recommendation of defendant Horace Itty Dalton, the Negro principal of the Field School. Dalton was in charge of employment and re-employment at the Field School. His recommendation that the teaching contracts not be renewed was based generally upon his contention that the teaching plaintiffs were incompetent, failed to co-operate with his administration, did not adhere to the chain of command in processing complaints, and some varied personal objections. His views were stated in an informal memorandum set forth on a typewritten sheet to Superintendent Sage and the Board.²

Mrs. Nichols and Mrs. Freeman had taught 24 years and 35 years respectively in the Gould District; Mrs. Woods 2 years; Mrs. Walker 4 months; and Mrs. Calloway and Mrs. Wilhite 4 years. There is no procedure or machinery set up under Arkansas law for school boards to conduct a hearing on complaints or on the hiring or rehiring of teachers. The Board at the request of the dismissed teachers did, however, hold a hearing on Monday, June 5, 1967, and another hearing in July 1967, giving the dismissed teachers the opportunity to appear and state their side of the dispute with Dalton. The Board, however, refused to rescind its position.

The complaint filed June 8, 1967, alleged that the Board’s refusal to rehire the teachers was “solely because of their race or color and the punitive motivation of defendant Dalton.” An allegation was also made that “plaintiffs were discharged because of the impending necessity for defendant district to fully desegregate its faculty by assigning Negro teachers to white schools and white teachers to Negro schools.”

The District Court, the Honorable Oren Harris, Chief Judge of the Western District of Arkansas, held that there was no evidence that the teachers were terminated because of their race or color or because of any civil rights issue. He viewed the evidence as presenting no federal question but as an internal dispute between the teachers and their principal, which dispute should remain in the jurisdiction of the School District and the state courts and not brought into federal court. The complaint was dismissed at the close of plaintiffs’ case. The District Court specifically found: (1) that the employment of the individual plaintiffs was terminated by defendants for reasons wholly unrelated to any improper racial consideration; (2) that the defendant School Board acted within the discretion vested in it by law in electing not to employ the individual plaintiffs for the 1967-1968 school year; and (3) concluded as a matter of law “the proof fails to establish that defendants have deprived plaintiffs of any rights, privileges or immunities secured by the Constitution and laws of the United States.” While the findings might be more detailed, we believe Judge Harris’ findings comply with Rule 52(a), Fed.R.Civ.P. As articulated by Judge Mehaffy in Manning v. Jones, 349 F.2d 992, 996 (8 Cir. 1965):

“ * * * [A] district court’s findings of fact must be liberally construed and found to be in consonance with the judgment if the judgment has support in the record evidence. * * * This is so even if the findings are not as specific or detailed as might be desired.”

Plaintiffs assert jurisdiction in the United States District Court under 28 U.S.C. § 1343(3) and (4) ³ and denominate their suit as an action in equity authorized by 42 U.S.C. § 1981 and § 1983.⁴ Plaintiffs assert their rights, privileges and immunities sought to be secured in this action are guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States.

We agree with the District Court that the evidence fails to sustain a cause of action under § 1343(3) as there has been no “deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution” or laws; or under sub-section (4) authorizing relief “for the protection of civil rights, including the right to vote”; or under § 1981, the old civil rights section placing all persons on a par with “white citizens”; or under § 1983, another old civil rights section, referring to deprivation of rights, privileges or immunities under color of any statute, ordinance, regulation, custom or usage.

The plaintiffs’ complaint cast as a civil rights action fails to show any deprivation of rights or privileges (immunity is not claimed) under color of any State law, statute, ordinance, regulation or custom. No racial discrimination is shown at all.⁵ On appeal the plaintiffs have dropped their initial request for enjoining the defendant School District from employing or assigning teachers on the basis of their race or color and are not pressing their charge that the teaching plaintiffs did not have their contracts renewed because of their race or color. There was no evidence introduced on the first issue, and the finding of the trial court on the latter issue is clearly supported by the evidence. Plaintiffs now contend that the Board acted arbitrarily, capriciously, and unreasonably in its attempt to resolve the conflict between the six teachers and Principal Dalton.

The Board did indicate to the plaintiffs that it would rehire them if they could resolve their differences with Dalton and secure his recommendation for their rehire. The plaintiffs view the Board’s position in sustaining Dalton’s recommendation for not renewing their contracts and placing upon them the burden of securing Dalton’s approval as arbitrary and capricious and a denial of federal due process under the Fourteenth Amendment. Stripped of the racial issue this case presents no federal question.

Teachers in the Arkansas schools are not covered by any type of civil service or tenure law. By Ark.Stat.Ann. § 80-1304 (b), they shall be employed by written contract annually. Their status is set forth in Shelton v. Tucker, 364 U.S. 479, 482, 486, 81 S.Ct. 247, 249, 251, 5 L.Ed.2d 231 (1960):

“Teachers there are hired on a year-to-year basis. They are not covered by a civil service system, and they have no job security beyond the end of each school year. The closest approach to tenure is a statutory provision for the automatic renewal of a teacher’s contract if he is not notified within ten days after the end of a school year that the contract has not been renewed.

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“ * * * [T]he teacher serves at the absolute will of those to whom the disclosure [lists of organizations belonged to within the last five years] must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain.”

The Arkansas Supreme Court also specifically observed in Johnson v. Wert, 225 Ark. 91, 279 S.W.2d 274, 276 (1955): “Ordinarily the board has the absolute right to decline to employ or re-employ any applicant for any reason whatever or for no reason at all.” This holding is in line with the general law on the employment or re-employment of school teachers.

“* * * [T]eachers are normally subject to selection at the hands of school boards, since among the general powers usually reposed in such boards is included the power to enter into contracts with teachers and to fix their compensation and terms of employment. The discretion of a school board in this respect is very broad, and when such discretion is exercised in good faith and is not contrary to law, the courts will not interfere to aid one whom the board does not choose to employ. The refusal of the board to employ one as a teacher is in no sense an infringement of any constitutional right of that person. The board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever or for no reason at all.” 47 Am.Jur., Schools § 114 (1943).

While the school boards in Arkansas have the right to decide whom they are going to employ or re-employ, the basis for failing to re-employ must not be on impermissible constitutional grounds. Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770 (8 Cir. 1966) (racial discrimination); Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966), cert denied 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (racial discrimination); Shelton v. Tucker, supra, (a disclosure statute violative of the right of associational freedom, closely allied to freedom of speech).

In Arkansas the board’s right not to rehire a teacher in the school district appears to be absolute, except that the decision must not rest on grounds that are violative of constitutional or legal rights. The plaintiffs in the District Court, after presenting all of their evidence, argued that as a matter of federal due process they had a right to have their contracts renewed and to receive damages for the failure to renew. They predicated their claim on Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) and Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). In Slochower the Court in a 5-to-4 decision held unconstitutional a New York City charter provision that provided for automatic dismissal from public employment of one asserting a Fifth Amendment privilege against self-incrimination before any court or public hearing or inquiry. The Court viewed the charter section as violative of the Due Process Clause of the Fourteenth Amendment for the asserted reason that the mere claim of the privilege does not provide a reasonable basis for the termination of employment. 555 of 350 U.S., 76 S.Ct. 637. Under the New York education law, teachers have tenure and can only be discharged for cause after notice, hearing, and appeal. We do not think Slochower is applicable as it applied to a tenure situation and an unconstitutional city charter provision.

In Schware, the Court in a unanimous decision, with Justice Whittaker abstaining held a person otherwise qualified could not be denied the opportunity to take the New Mexico state bar examination on a discriminatory basis of qualification. The Court held 353 U.S. at 238-239, 77 S.Ct. at 756:

“A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.”

and further held at 239, 77 S.Ct. at 756: “[A]ny qualification must have a rational connection with the applicant’s fitness or capacity to practice law.” We do not deem Schware as applicable as that case dealt with the general right to practice a profession and did not deal with the narrower question of a right to specific employment.

Almost all of the cases cited in support of plaintiffs’ position are concerned with either racial discrimination or an invasion of a constitutionally protected right or privilege by way of a statute or regulation. We agree that the teachers are protected under the Equal Protection Clause from discrimination on account of race or religion or in their assertion of constitutionally protected rights, but no case cited by plaintiffs has gone so far as to say that all actions of any governmental board or agency in employment cases must accord the individual due process under the Fourteenth Amendment so as to provide tenure and a right to retain the position, except for cause. And “for cause” presupposes a right to hearing, notice, and appeal. Many government employees are under civil service and some under tenure. Absent these security provisions a public employee has no right to continued public employment, except insofar as he may not be dismissed or failed to be rehired for impermissible constitutional reasons, such as race, religion, or the assertion of rights guaranteed by law or the Constitution.

Without detailing all of the cases cited, a review of the principal cases relied on is illuminating. In Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952), the Court struck down a so-called loyalty oath holding the “* * * constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” (Emphasis supplied). Greene v. McElroy, 360 U.S. 474, 79 S.Cf. 1400, 3 L.Ed.2d 1377 (1959) dealt with security clearance procedures not authorized by the President or by the Congress; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), a denaturalization proceeding; Spriggs v. Altheimer, Arkansas School District No. 22, 385 F.2d 254 (8 Cir. 1967), civil rights case concerned with a discriminatory practice in charging tuition; Cramp v. Board of Public Instruction of Orange County, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961), Florida statutory loyalty oath; Franklin v. County School Board of Giles County, 360 F.2d 325 (4 Cir. 1966), discriminatory racial discharge; Torcaso v. Watkins, Clerk, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), Maryland religious oath violative of First Amendment; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), Washington statutory loyalty oath.

Plaintiffs rely on Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962) for their assertion that the Board must meet due process requirements in all of its actions. That ease held a school board had not abused its discretion in transfering students from a white elementary school and converting that school into a Negro school. This again is a case dealing with racial discrimination and the related problems of desegregation. The Court there, after recognizing the broad discretion vested in the school board, said at 4: “* * * the matter addresses itself to the question as to whether or not the action taken in this ease was arbitrary, unreasonable, capricious, wrongful, discriminatory or oppressive.” On the basis of this holding, plaintiffs then project that the Board must accord due process, both substantive and procedural, in all of its operative procedures. If this were so, we would have little need of tenure or merit laws as there could only be, as argued by the plaintiffs, a discharge for cause, with the school board carrying the burden of showing that the discharge was for a permissible reason. We do not believe this to be the law,' as there are many public employees who are separated from their employment by a purely arbitrary decision, upon a change of administration or even a change of factual control where the appointments are not protected by civil service or some type of tenure, statutory or contractual.

Plaintiffs also assert they were denied procedural due process in that they were afforded no opportunity to confront and cross-examine Principal Dalton. They cite Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), which held that a person who had passed a state bar examination had a right to a hearing when his character was put in issue by the adverse report of a bar committee. In discussing the matter the Court stated at 103, 83 S.Ct. at 1180: “* * * [T]hat procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.” This case again relates to the right of a person otherwise qualified to be licensed in a profession and does not present the same type of situation as the case at bar, which is a right to specific employment.

When a particular statutory procedure is set up for the dismissal of a teacher it must be followed, but absent statutory procedures the Board may adopt its own method. 47 Am.Jur., Schools § 125 (1943). Although not legally required to do so,⁶ the Board did accord the teachers a hearing to air their grievances,—one hearing before this suit was filed and the other one shortly after. Plaintiffs also took Dalton’s deposition. This, of course, would not be dispositive of their right of confrontation at the first Board hearing if it were incumbent upon the Board to produce Dalton. Actually, the plaintiffs never requested an opportunity to confront and cross-examine Principal Dalton at a Board hearing. However, we do not think the Board was obligated under these circumstances to produce Dalton at a hearing. Principal Dalton’s function in the hierarchy of the school administration was to make recommendations for the employment and reemployment of the teachers. He was serving as an arm of the Board in this respect and, of course, was available for conferences with the Board. From the evidence, it appears the Board acted in good faith, and members of the Board also made their own investigation of the controversy.

The cases cited by plaintiffs deal with procedural due process in criminal proceedings and in proceedings concerned with technically qualified applicants for licensure in a profession, where character is also a vital issue. These cases are not germane to the precise issue here of whether the Due Process Clause of the Fourteenth Amendment requires an administrative hearing on the refusal to reemploy a teacher, with subsequent judicial review on a claim of arbitrariness. See, Studemeyer v. Macy, 116 U.S.App.D.C. 120, 321 F.2d 386 (1963), cert. denied 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265. Absent statutory or contractual requirements, persons discharged for inefficiency, incompetency, or insubordination have no constitutional right to a hearing with rights of cross-examination and confrontation of witnesses.

We do not think it within the province of the federal court to pass upon and decide the merits of all of the internal operative decisions of a school district. However, even if we were to pass upon the merits of this issue, we do not think that we could say that the Board was capricious or arbitrary in its attempt to resolve this internal dispute between the teachers and the principal of the school. There must be some degree of harmonious cooperation in school administration to insure an efficient use of public funds and a reasonably satisfactory school program. School boards are representatives of the people, and should have wide latitude and discretion in the operation of the school district, including employment and rehiring practices. Local autonomy must be maintained to allow continued democratic control of education as a primas^ state function, subject only to clearly enunciated legal and constitutional restrictions.

We, therefore, conclude with the District Judge that there is no civil rights issue presented in this case and that the disagreement between the plaintiff teachers and the principal is an internal matter to be handled by the School Board. Further, there is no federal due process issue presented.

J udgment affirmed.

1 . In addition to the School District, the plaintiffs joined T. Raymond Sage, the superintendent of the District, and Horace Itty Dalton, the Negro principal of the Field School, as defendants.

2 . The memorandum in pertinent part reads as follows:

“Dear Members and Superintendent:

“Mr. Matlock and myself have worked this program out together all year, and we have come to the conclusion that these people do not meet the requirements of a good' school system. I have recommended these people for no contract.

“Mrs. Inez Nichols: ‘bullheaded, goes to Pine Bluff without permission, old trends of teaching, don’t adhere change of command’

“Mrs. Jesse Freeman: ‘incompetent, old fashion teaching methods, keep children afraid of her, disregard modern trends of teaching, insubordination’

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“Mrs. Earlene Woods: ‘lazy, out of class everytime I visit elementary department, incompetent and neglect night activities’

“Mrs. Walker: ‘after each payday she stays at home, no co-operation, insubordination, don’t believe in change of command’

“Mrs. Essie Calloway: ‘lazy, incompetent and non-co-operative’

“Mrs. T. N. Wilhite: ‘non-co-operative, don’t attend night activities, every year skin sickness, in the wrong field— Home Economics major.’ ”

(The letter also recommended that the contracts of 15 other teachers be renewed.)

3 . Section 1343 in pertinent part reads as follows:

“1343. Civil rights and elective franchise.

“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

* * * * # * *

“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

“(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”

4 . Sections 1981 and 19S3 (enacted in 1870 and 1871 respectively) read as follows:

Ҥ 1981. Equal rights under the law.

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

Ҥ 1983. Civil action for deprivation of rights.

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

5 . All of the teaching plaintiffs testified to the effect that they did not attribute their dismissal to their race or color nor did they have any complaints or evidence concerning the assignment of teachers on the basis of their race or color. All of them denied the charges of incompetency and insubordination. They made counter-charges alleging that Dalton was incompetent, that his motive for singling out the plaintiffs was punitive in nature and resulted from Dalton’s lack of administrative ability and competency. They also complained of some personal actions of Dalton. Two of the teachers testified that Dalton made improper advances or proposals to them, which Dalton denied in his deposition and testimony.

6 . Under Arkansas law the teachers are not entitled to a hearing as a matter of right. The Attorney General of Arkansas in an opinion dated May 10, 1967 construed the Arkansas law as follows:

“Ark.Stat.Ann., § 80-1304 provides for the renewal of teacher’s contracts in writing by the directors of the school district. No reason need be given for the termination of a teacher’s contract as this is left to the discretion of the board.

“No statutory authority is found for the granting of a hearing on the matter and consequently a hearing, if granted by the board, may be conducted in whatever manner the board determines most desirable. The teacher may be represented by an attorney at the hearing if the board so desires, but no authority is found for such representation.”