ON APPEAL FROM ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 74-1976).
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges.
We are presented with the question of whether a nontenured teacher in the New Jersey public schools must exhaust his administrative remedies prior to commencing an action in federal court under 42 U.S.C. §§ 1983, 1985 where among other claims, he alleges violation of his First Amendment rights. We conclude, contrary to the district court, that exhaustion is not required under the facts presented here.
Plaintiff-appellant David Hochman, a certified nontenured teacher of mathematics at Broadway Junior High School in Newark, New Jersey, commenced this action for injunctive and monetary relief against the Board of Education of the City of Newark, the Superintendent and Assistant Superintendent of the Schools, and the Principal of Broadway Junior High School. The complaint averred that the defendants terminated Hochman's employment ". . . in retaliation against his exercise of First Amendment rights. . .."
Hochman alleged that he had written letters to the individual defendants, with copies to a union representative and a state senator, concerning the breakdown of disciplinary procedures at the school and classroom disruption. After receiving no response to the letters, he allegedly attempted to implement a procedure to deal with disruptive student behavior which involved denying the students academic credit for three days and communicating with their parents.
On November 25, 1974 the defendant Assistant Superintendent observed Hochman's classroom and that same day orally suspended Hochman from employment pending termination. Hochman then received a letter dated December 5, 1974 from the Board of Education indicating that his termination for unsatisfactory performance would be effective as of December 25, 1974. Although Hochman requested a hearing before the Board, no such hearing was provided.
Thereafter, on December 18, 1974 Hochman filed a complaint in the United States District Court for the District of New Jersey asserting:
22. . . . that defendant David [Assistant Superintendent] and defendant Vasselli [Principal] conspired and agreed to have plaintiff dismissed from employment because he exercised his right to complain and seek redress concerning serious conditions prevalent at the school.
23. . . . that his dismissal was in retaliation against his exercise of First Amendment rights to petition for redress and that there is no cause to dismiss him for poor work performance. Plaintiff has never received an unsatisfactory rating.
24. . . . that his contract, although terminable on thirty (30) days written notice, is a yearly contract and its termination orally or in writing is state action which violates the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution and entitles plaintiff to a full and fair hearing thereon.
25. . . . that defendant Vasselli and defendant Board of Education by prohibiting his policy of not allowing academic credit and prohibiting his sending a letter to the parent is violative of First Amendment guarantee of free speech and the Fifth Amendment guarantee of life, liberty and the pursuit of happiness as applied against state action by the Fourteenth Amendment, and effectively deprives plaintiff of his right to pursue his profession in an efficacious and orderly manner.
The defendants moved to dismiss the action for lack of subject matter jurisdiction based upon Hochman's failure to exhaust his administrative remedies. The district court, relying upon the Second Circuit's decision in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 27 L. Ed. 2d 75, 91 S. Ct. 82 (1970), entered an order on March 6, 1975 dismissing the action without prejudice for failure to exhaust administrative remedies. Hochman ...