stating that defendants have the burden to prove the mitigation of damages
How later courts described this case
- stating that defendants have the burden to prove the mitigation of damages
Written by the judges who cited it.
The opinion
*551 OPINION ON PETITIONS TO REHEAR
Both parties have filed petitions to rehear.
Chapdelaine’s petition contains an elaborate discussion of his constitutional right of due process and complains primarily of the fact that he did not receive written charges or notice of dismissal and was not afforded an adversary confrontation. We agree. And we so held. It was because of these procedural irregularities that we permitted the Chancery Court’s award of back pay to stand.
Upon reconsideration, we continue to be of the opinion that this is not a proper case for reinstatement.
The State’s petition insists that we failed to consider § 20-1702 T.C.A. relating to the sovereign immunity of the State. Section VII of the main opinion discusses this issue. We reiterate that “we are not impressed with the insistence (that this) is a suit against the State and, therefore, is barred by sovereign immunity.”
The college and university teachers’ tenure law, as incorporated in § 49-1421 T.C.A., and the regulations promulgated pursuant thereto, would be “as sounding brass, or a tinkling cymbal”, if it did not carry with it the coordinate right of a tenured teacher to seek back pay in wrongful dismissal cases.
The State hyperbolizes horrendous happenings as the inevitable result of the Court’s ruling. A fair example, taken from its brief:
It is estimated that at Memphis State University alone the Court has committed in excess of $10,000,000.00 for the lifetime payment of mediocre in-instruction. (Emphasis supplied)
We are astounded at this allegation — so astounded that we decline to treat it as an admission. If it be true, the situation at Memphis State is in urgent need of immediate remedial action.
If the teachers’ tenure laws have tended to promote mediocrity, the fault must lie with the school administrators and their failure to take appropriate affirmative action to weed out the mediocre and the misfits. When they do not have the courage to terminate mediocre teachers prior to their attainment of tenure status, they have no standing to criticize the courts for the enforcement of the laws. The law permits colleges and universities to lengthen the probationary period — in fact it may be prolonged indefinitely. If they have sat idly by and galvanized incompetents into permanent fixtures, they have only themselves to blame. The Legislature gave them a sound and workable law. When the skipper of a ship ignores his compass and winds up on the reefs and rocks, he is not in a position to point the finger of blame at those who observe and assess the consequences. Hopefully, this opinion will result in many houses being placed in order.
This opinion, however, does not mean that all college and university professors attained tenure after three years of satisfactory service coupled with re-employment. Those teachers with actual notice of the five-year rule, or whose contracts contained apt five-year provisions or references, are not affected by this holding. Chapdelaine was employed with the understanding that he would attain tenure status at the end of three years and the 1961 regulation so provided.
The petitions to rehear are respectfully denied.
All concur.