# Evelyn J. Johnson v. S. A. Fraley Jr.

> Court of Appeals for the Fourth Circuit · November 20, 1972 · 470 F.2d 179

URL: https://www.frixlaw.com/law-library/cases/9458941

## Case

- **Full name:** Evelyn J. JOHNSON, Appellant, v. S. A. FRALEY Jr., Et Al., Appellees
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** November 20, 1972
- **Citations:** 470 F.2d 179; 1972 U.S. App. LEXIS 6633
- **Precedential status:** Published
- **Opinion:** Concurrence by Boreman
- **Judges:** Boreman, Bryan, Butzner
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458941

## Opinion text

BOREMAN, Senior Circuit Judge
(concurring specially as to result):
As I read the majority opinion, my brothers would remand this case for trial, with opportunity to the appellant school teacher to present evidence showing that she has been unconstitutionally deprived of her rights on either, or both, of two separate and distinct theories: (1) that she may have been deprived of a “property” interest in re-employment, which interest might arise from her twenty-nine years of continuous employment and from other facts and circumstances which would amount to the “equivalent of tenure”; (2) that she may have been deprived of a “liberty” interest in re-employment which interest might arise from interference with her freedom to obtain other employment by reason of damage to her professional reputation due to the failure to renew her contract. The majority relies on 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). As I can agree with the first, but not the second, basis of the remand, I feel compelled to state separately my concurrence and the rationale of my disagreement.
In Board of Regents v. Roth, supra, 408 U.S. at 569, 92 S.Ct. at 2705 , the Supreme Court noted that, “The requirements of procedural due process apply only to the deprivation of interests encompassed within the Fourteenth Amendment’s protection of liberty and property.” The Court then proceeded to analyze the Fourteenth Amendment’s protection of “liberty” and “property,” and to discuss the application of each concept with respect to a nontenured teacher whose contract is not renewed.
I. PROPERTY
In Roth, the Court stated:
“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” 408 U.S. at 576, 92 S.Ct. at 2708.
“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Emphasis supplied.) 408 U.S. at 577, 92 S.Ct. 2709 .
The Court noted that “property interests” are not created by the Constipa— tion, but, “Rather, they are created ariS their dimensions are defined by existing rules or understandings that stem from an independent source such as state law —rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 408 U.S. at 577, 92 S.Ct. at 2709. The teacher there involved, David Roth, had been appointed to the faculty of Wisconsin State University with the express understanding that his employment would begin September 1, 1968, and end June 30, 1969. Since Wisconsin law and the terms of Roth’s appointment would support no claim of entitlement to reemployment, the Court concluded that he had shown no constitutionally protected “property” interest in being rehired, and thus was not entitled to procedural due process upon the decision not to renew his contract.
The Court had occasion to apply the principles set forth in Roth in Perry v. *184 Sindermann, supra, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 . The teacher, Robert Sindermann, had taught in the state college system of Texas for ten successive years under annual contracts. The Board of Regents of the junior college where Sindermann taught voted not to offer him a contract for the next academic year. Sindermann brought suit in the district court alleging, inter alia, that the failure to provide him an opportunity for a hearing violated due process. The district court granted summary judgment against Sindermann. The court of appeals reversed, holding that despite Sindermann’s lack of tenure, the failure to allow him an opportunity for a hearing would violate due process if he could show that he had an “expectancy” of re-employment. The court of appeals ordered exploration of this factual issue upon remand. Sindermann v. Perry, 430 F.2d 939 (5 Cir. 1970). The Supreme Court affirmed the result reached by the Fifth Circuit, but, apparently, did not wholly agree with its opinion. The Court held that a mere subjective “expectancy” is not a property interest and thus is not protected by procedural due process. However, the Court noted that Sindermann had alleged that his interest in continued employment, though not secured by a formal contractual tenure provision, was secured by a no less binding understanding fostered by the college administration. Sindermann had claimed that the college had a de facto tenure program and that he had tenure under that program; also, that he and others had relied upon provisions of the college’s Faculty Guide and upon guidelines promulgated by the Coordinating Board of the Texas College and University System, all of which might tend to show some form of job tenure. The Court stated, “Thus [Sindermann] offered to prove that a teacher, with his long period of service, at this particular State College had no less a ‘property’ interest in continued employment than a formally tenured teacher at other colleges, and had no less a procedural due process right to a statement of reasons and a hearing before college officials upon their decision not to retain him.” 408 U.S. at 601, 92 S.Ct. at 2699.
In Sindermann the Court concluded that, “[A]bsence of ... an explicit contractual [tenure] provision may not always foreclose the possibility that a teacher has a ‘property’ interest in reemployment,” 408 U.S. at 601, 92 S.Ct. at 2699, and ordered that Sindermann be given a chance to show that “the policies and practices of the institution” were as he had alleged. The Court again noted that property interests are created by state law and warned, “If it is the law of Texas that a teacher in [Sinder-mann’s] position has no contractual or other claim to job tenure, [his] claim would be defeated.” 408 U.S. at 602, n. 7, 92 S.Ct. at 2700.
Referring to both Sindermann and Roth, my brothers state, “These decisions avouch that continuous employment over a significant period of time —such as appellant’s 29 years — can amount to the equivalent of tenure.” If my brothers intend by their statement to say that those opinions positively assert this conclusion I would be inclined to disagree, but the Court’s opinions might be so interpreted as to provide some support for it. The teacher’s allegations in the instant case seem to me to be sufficient to show the possible existence, in light of all the circumstances, 1 of the “equivalent of tenure.” Therefore, I join in remanding to the district court.
II. LIBERTY
My brothers state, “[W]e find Sinder-mann and Roth, supra, both declaring *185 that injury to professional reputation or livelihood caused by an abrupt termination of an engagement of substantial longevity warrants an inquiry upon whether the means pursued satisfied constitutional due process.” I cannot agree. I find nothing in Sindermann which can be so interpreted. And, as I read Roth, the Supreme Court did not so declare. Rather the court of appeals in Roth had so held, but the Supreme Court neither affirmed nor expressly disapproved this holding. The Court did, however, strongly indicate that a mere failure to renew a nontenured teacher’s contract, standing alone, would not suffice to raise a constitutional question.
The Court said in Roth that it had not attempted to define “liberty” with exactness, but that some of the “included things” have been definitely stated, and, “There might be eases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated.” 408 U.S. at 573, 92 S.Ct. at 2707. Two examples were given:
(1) Where a person’s “ ‘good name, reputation, honor or integrity,’ ” 408 U.S. at 573, 92 S.Ct. at 2707, is at stake. But the Court concluded that on the facts in Roth there was no suggestion that the teacher’s interest in his good name, reputation, honor or integrity was involved since the State, in declining to rehire him, made no charges against him (such as dishonesty or immorality) which might damage his standing in his community; and,
(2) Where the State, in declining to re-employ a teacher, “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” 408 U.S. at 573, 92 S.Ct. at 2707. The State had imposed no “stigma” on Roth, however, nor had it imposed on him any “other disability” since, “The State, for example, did not invoke any regulations to bar [him] from all other public employment in State universities.” 408 U.S. at 573, 92 S.Ct. at 2707.
The Court discussed the assumption by the district court in Roth that nonre-tention alone would create “ ‘concrete and practical difficulties for a professor in his subsequent academic career,’ ” 408 U.S. at 574, n. 13, 92 S.Ct. at 2707, and the argument of the court of appeals that, ‘“[T]he substantial adverse effect non-retention is likely to have upon the career interests of an individual professor’ amounts to a limitation on future employment opportunities sufficient to invoke procedural due process guaranties.” Id. The Court stated:
“[E]ven assuming arguendo that such a ‘substantial adverse effect’ under these circumstances would constitute a state imposed restriction on liberty, the record contains no support for these assumptions. There is no suggestion of how nonretention might affect [Roth’s] future employment prospects. Mere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty’.” 408 U.S. at 574, n. 13, 92 S.Ct. at 2708. (Emphasis supplied.)
The conclusion to me seems clear. To sufficiently state a constitutional claim of denial of “liberty,” a nontenured teacher whose contract has not been renewed must plead either that his “good name, reputation, honor or integrity” has been damaged by, in addition to the nonrenewal, the assignment of reasons for the nonrenewal, or he must plead that the State has imposed on him some “stigma” or “other disability,” in addition to the nonrenewal, which foreclosed his freedom to take advantage of other employment opportunities. The teacher in the instant case has alleged nothing which might harm her reputation or which might interfere with her ability to get another job except the nonrenewal *186 itself. 2 Thus, in my view, she has not made out a constitutional claim in this respect.
In Chitwood v. Feaster, 468 F.2d 359 (4 Cir. 1972), this court had before it the appeal of several nontenured teachers whose contracts were not renewed by Fairmont State College in West Virginia. The teachers asserted, inter alia, that they should have been given notice of nonrenewal, a statement of reasons and an administrative hearing before the decision not to renew became final. The district court had granted summary judgment against the teachers. In their brief to this court the teachers asserted that:
“[T]he complaint provided that ás a result of defendants’ actions, plaintiffs had been subject to public ridicule and scorn, suffered injury to their professional reputations, had been ‘deprived of employment, had lost their earning capacity, had incurred expenses, and had suffered emotional stress and . . . pain and suffering.’ ”
Despite these allegations in the teachers’ complaint, this court (opinion by Chief Judge Haynsworth) stated:
“The [procedural due process] contention has been foreclosed by a subsequent decision of the Supreme Court in Board of Regents v. Roth .... These teachers were not tenured and there was no basis for any reasonable expectancy of permanent employment. While the college might have dealt with them more frankly, under Roth, they had no constitutional right to a statement of reasons for the failure to renew their contracts or to an opportunity for an administrative hearing.” (Emphasis supplied.) Chitwood v. Feaster, supra, 468 F.2d 359, 360 .
In so holding, this court did not deem it necessary to even mention the teachers’ allegations of injury to their professional reputations.
To the extent that the participating judges of this court in Chitwood v. Feaster were of the view that the teachers had not successfully raised a procedural due process issue, the opinion there might be interpreted as conflicting with the view of my brothers in the instant case and their interpretation of the Supreme Court’s holding in Roth.
. The school board’s regulation (perhaps even if superseded by state statute), and the teacher’s allegation (not mentioned in the majority opinion) that, “By their remarks to pilaintiff and her friends, defendants induced her to believe that she would receive some tyxio of teaching position for the 1970-71 school year,” might provide additional support for her argument that she had an implied contract amounting, under Virginia law, to de facto tenure.
. The teacher’s complaint stated:
10. Plaintiff has been unemployed for the 1970-71 school year, and the County School Board’s failure to renew her contract under the circumstances above set forth after 29 years of faithful and competent service accepted by said Board, irreparably has damaged her professional reputation and irreparably has impaired her ability to earn a livelihood, since teaching is the only occupation in which she has substantial experience.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458941. Public record. Not legal advice.