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ENGLISH v. NORTH EAST BD. OF EDUC.

November 6, 1974

Deborah Ann ENGLISH
v.
NORTH EAST BOARD OF EDUCATION



The opinion of the court was delivered by: WEBER

 Plaintiff schoolteacher was hired by Defendant School Board as a "temporary professional employee" for a one year term on January 24, 1974. On June 30, 1974, after notice and hearing before the Board, her contract was terminated. She brings this action under the federal Civil Rights Act 42 U.S.C. § 1983 claiming jurisdiction under 28 U.S.C. § 1343. While the School Board is not a "person" giving rise to a cause of action under 42 U.S.C. § 1983, we would not dismiss without giving leave to amend, and plaintiff has moved to amend to name the individual members of the Board as parties defendant. Because plaintiff alleges a deprivation of due process jurisdiction might also be under 28 U.S.C. § 1331, provided that the requisite jurisdictional amount were alleged. We, therefore, do not consider it significant whether or not the School Board is a "person" until we determine whether the pleadings are sufficient in other respects to withstand defendant's motion for summary judgment.

 No allegation is made that the substantive decision to terminate plaintiff's employment was based on plaintiff's exercise of any constitutional rights or was in violation of any constitutionally prohibited discriminatory practice. Such an allegation would give her the right of action in this court regardless of any institutional hearing. Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 [3rd Cir. 1974]. Rather her sole attack is upon the procedural due process of which she claims she was denied by the Board's administrative process.

  Plaintiff's contract right to employment for a term of one year is a property interest under 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]. We are, therefore, called upon to determine whether the method of termination comported with fourteenth amendment procedural due process.

 Plaintiff at this stage of the litigation is still in the same procedural posture as was the plaintiff in Perry v. Sindermann, supra, facing a motion for summary judgment on the pleadings. The plaintiff here, however, has passed the obstacle facing the plaintiff in Perry, in that there is no dispute here that plaintiff's employment was terminated before her one year contract expired by its own terms. In Perry v. Sindermann, the court held that Sindermann's claim that the "college refused to renew the teaching contract on an impermissible basis -- as a reprisal for the exercise of constitutionally protected rights" [ 408 U.S. at p. 598, 92 S. Ct. at p. 2698] presented a genuine dispute which foreclosed the exercise of summary judgment. Similarly, it held that "respondent's allegations -- which we must construe most favorably to the respondent at this stage of the litigation -- do raise a genuine issue as to his interest in continued employment . . ." [p. 599, 92 S. Ct. at p. 2698]. Thus Summary Judgment on the pleadings was improper on that issue.

 The majority opinion gives scant guidelines as to what constitutes a due process hearing in the event that plaintiff established his contractual interest, except to say, "But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency." [p. 603, 92 S. Ct. at p. 2700].

 The concurring opinion of Chief Justice Burger in both Roth and Perry indicates that one having a contractual right "has, in turn, a right guaranteed by the Fourteenth Amendment to some form of prior administrative or academic hearing on the cause for nonrenewal of his contract." [ 408 U.S. pp. 603-604, 92 S. Ct. at p. 2717]. The one clear standard given is that such a hearing must be prior to the dismissal. See also Skehan v. Board of Trustees, cite supra, 501 F.2d at p. 38.

 During the course of the one semester which plaintiff worked she was evaluated by certain supervisors. On the basis of these evaluations her superintendent on June 10, 1974 gave her a final rating of "unsatisfactory". On June 14, 1974 she was notified that on June 19, 1974 she was to appear at a hearing before the School Board at which her unsatisfactory rating would be considered. On application to the Court of Common Pleas, plaintiff obtained a continuance of the hearing until June 29, 1974, and an order that the School Board provide plaintiff with copies of the three rating forms which would be considered. The hearing was held on June 29, 1974; plaintiff was present with her counsel, cross-examined the School Board's witnesses, and presented a witness in her own behalf as well as her own testimony. The School Board was represented by its Solicitor. Testimony was elicited in question and answer form, the entire proceedings were transcribed by a court reporter and the transcript has been filed as an exhibit with this motion.

 Plaintiff makes two specific claims of deprivation of due process: inadequate notice of all charges made against her at the hearing and the failure of the School Board to afford her a hearing by an impartial arbiter.

 With regard to the first claim it is the plaintiff's position that she was entitled to know beforehand the evidence which would be presented against her and that the failure of the notice to give this evidence in detail prejudiced her ability to prepare a defense and to cross examine the witnesses against her.

 "The Fifth Amendment does not require a trial-type hearing in every conceivable case of governmental impairment of private interest. . . . The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U.S. 886, 894-895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 [1961]. See also Simard v. Board of Education, 473 F.2d 988, 992 [2nd Cir. 1973].

 We find that the plaintiff was given substantial notice of the basic charges, an opportunity to cross examine the witnesses who presented the testimony against her, and an opportunity to be heard by herself and witnesses on her behalf.

 In Simard v. Board of Education, cit. supra, the court considered the charge that the Board of Education was not a ...


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