The opinion
STEVENS, Circuit Judge
(dissenting).
Two distinctions are decisive. The first is the distinction between wise policy and a constitutional mandate; the second is the distinction between procedure and substance. Because these distinctions are blurred in the majority opinion in Roth, as well as here, I believe that these apparently reasonable and relatively innocuous decisions have in fact planted a pernicious seed.
Courtesy and effective communication between employer and employee are certainly desirable as a matter of policy. It may also be wise to follow different employment practices for teachers than for other public employees. And in some jurisdictions the frequency of irrational official conduct may warrant judicial review of a local school board’s decisions. In a federal system, however, matters such as these are peculiarly the concern of state policy rather than federal constitutional law.
In the absence of contract or special legislation, I do not believe a schoolteacher has any greater constitutional right to public employment than a law clerk, a highway maintenance worker, a pilot, an election judge, or any other public servant. Nor do I find any constitutional distinction between an arbitrary refusal to hire a qualified applicant and an arbitrary refusal to retain a qualified worker. The potential impact of this case is unusually broad.
The majority finds in the due process clause a generalized protection against arbitrary termination of public employment. As a matter of procedure, the employee is entitled to a “glimpse” at the reasons for his nonretention and a “minimal opportunity to test them.” As a matter of substance, his nonretention may not rest “on a basis wholly inappropriate in fact or on a basis wholly without reason.”
If the individual has a right to the employment he seeks, or seeks to retain, procedural due process certainly requires that he be afforded an opportunity to be heard. And if the employee has a constitutional right to a hearing, even though “minimal” in character, the ultimate purpose of the hearing must be defined. Under Roth, more than a mere opportunity to try to persuade a school administrator to change his mind is involved. The ultimate purpose is to determine whether the administrative decision rests “on a basis wholly inappropriate in fact or on a basis wholly without reason.”
The source of this requirement, as well as the source of the substantive right itself, is unclear. It is not derived from any statute, regulation or common law rule. If it is predicated on something other than judicial fiat, the due process clause itself must perform the dual function of creating the right to be protected and also prescribing its procedural safeguards. I believe this interpretation of the due process clause will significantly enlarge the power and responsibility of the federal judiciary.
Some years ago courageous and wise federal judges foresaw the potential harm that might flow from arbitrary actions by state government. On the assumption that the due process clause was more than a guarantee of fair procedure, they found a basis for substituting their views of sound policy for the “arbitrary” decisions of state officials. Whether or not *1029 their policy judgments were correct, their expansive interpretation of the due process clause was fundamentally erroneous.
The analogy is apt because we have no guidelines other than the vague contours of the due process clause itself, and our own conceptions of appropriate policy, by which to judge the character of a school board’s nonretention decision. In final analysis the “due process” decision will not turn on any question of fair procedure but on a judge’s evaluation of the substance of the administrative determination. I believe judges are qualified by experience and training to evaluate procedural fairness and to interpret and apply guidelines established by others; I do not believe they have any special competence to make the kind of policy judgment that this case implicitly authorizes. The assumption that they do invites the reaction that was produced by decisions such as Loehner v. New York, 198 U.S. 45, 56 , 25 S.Ct. 539 , 49 L.Ed. 937 .
I respectfully dissent.