Petition — Mt. Healthy City School District Board of Education v. Doyle

¢ Supreme Court, U. &

. FILED

MAR 9 1976

DAK, N.,

IN THE WICHAEL RO N., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No. @5-1 278

FRED DOYLE,

Respondent,

vs.

MT. HEALTHY CITY SCHOOL DISTRICT

BOARD OF EDUCATION,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PHILIP S. OLINGER

115 Fieldstone Dr.

Terrace Park, Ohio 45174

Tele. No. 513/831-5250

Attorney for Petitioner

COURT INDEX PRESS, INC. — 809 Walnut Street, Cincinnati, Ohio 46202 — (513) 241-1460

INDEX

OPINION OF COURTS BELOW ..............

% SS ee

QUESTIONS PRESENTED .............. eee

CONSTITUTIONAL PROVISIONS INVOLVED .

FEDERAL STATUTES INVOLVED ............

STATUTES INVOLVED U.

STATEMENT OF THE cas

REASONS RELIED UPON FOR ALLOWANCE

„)) a ae 5 PS.

1. The District Court does not have jurisdic-

r Sacemaemee s,s

2. The Mt. Healthy City School District

Board of Education is immune from

suit under the sovereign immunity protec-

tion of the Eleventh Amendment of the

United States Constitution.

3. The Court below erred in concluding that

the board refused to reinstate Doyle for a

constitutionally impermissible reason. ..... .

P cÖ(U—V— sa cee

12

il.

Page

APPENDIX:

Findings and Conclusions of District Court la

Judgment Entry of District Court 16a

Order of Court of Appeals .................... 18a

Statutes — Ohio Revised Code:

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1 20a

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CITATIONS

Cases:

Akron Board of Education v. State Board of Educa-

tion, 490 F.2d 1285, cert. den. 417 U.S. 932 (6th

RN SIE is Fis on sa 6) A ˙

Alyeska v. Wilderness Society, 421 U.S. 240 (1975)

American Communications Ass n, CIO v. Douds,

,, ² 4 4b e'useit g pied <9 4

Birchrest v. School Dist. of Philadelphia, 346 F.Supp.

Goc

Board of County Commissioners of Mahoning Coun-

ty v. Rhodes, 86 Ohio Law Abs. 390, 177 N.E.2d

557 (C.P. Franklin County, 1960) ............

Page

Board of Edn. v. Volk, 72 Ohio St. 469 (1905) 9, 11

Board of Trustees of University of Tennessee v.

Soni, 513 F.2d 437 (6th Cir. 1975), petition for

,t, AKA

Brandt v. Town of Milton, 43 L. W. 2388 (2/14/75) .

Brown v. Board of Edn., 20 Ohio St. 2d 68 (1969)

Brown v. Board of Education City of Chicago, 386

e

Callahan v. Superintendent of Edn. of Leske Coun-

ty, Miss., 505 F.2d 83, 513 F.2d 51 (5th Cir. 1975)

, ae ee scp g eas oes:

City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct.

, nee ene

Conque v. Gausche, 5th Cir. 3/14/75, cert. denied

c

IV.

Cases: .

Cook County Teachers Union Local 1600 AFT v.

Boyd, 456 F. 2d 882 (7th Cir. 1971), cert. den. 409

U.S. 848, reh. den. 414 U.S. 883 (1973)

Corbean v. Xenia City Board of Edn., 366 F.2d

ee ieee

Courtney v. School Dist. No. 1, Lincoln County,

Wyo., 371 F.Supp. 401 (Wyo. 1974) ............

Cuiska v. City of Mansfield, 250 F.2d 700 (6th Cir.

ůꝶùhh .

Cupples Co. Mfg. v. Farmers & Merchants State

Bank, 390 F.2d 184 (5th Cir. 1968) ............

Cusumano v. Ratchford, 507 F.2d 980 (8th Cir.

60ù» . b4cupereneeeee

Danse v. Bates, 369 F.Supp. 139 (N. D. N.Y. 1973)

De Long v. Board of Education, 37 Ohio App. 2d

69, 306 N. E. 2d 774, aff'd 36 Ohio St. 2d 62 (1973)

Fabrizio & Martin, Inc. v. Board of Edn. of Central

School District No. 2, 290 F.Supp. 945 (N.Y. 1968)

Fluker v. Alabama State Board of Education, 441

F268 308 Gen Ge. Ge) . IN A eee

Gieringer v. Center School Dist. No. 58, 477 F.2d

1164 (Oth Cle. 1998: ... eee ee

Gilliam v. Lewis, et al., (U.S.D.C., S. D. Ohio, E.D.)

e ices chats. cee

Gordenstein v. University of Delaware, 381 F.Supp.

ee Pr eee re ee

Goss v. Lopez, 419 U.S. 565 (1975) ..............

Page

16

12

Cases:

Gay v. Union County Intermediate Education Dist.,

520 F.2d 803 (9th Cir. 1975) ..................

H all v. Board of Edn., 32 Ohio App. 2d 297 (1972) 9, 11

Hans v. Louisiana, 134 U.S. 1, 10 8. Ct. 504 (1890) .. 8

Hiarkless v. Sweeney Indep. School Dist., 427 F.2d

319 (Sch Cir. 1970) „ . 10

Howell v. Winn Parish School Board, 377 F.Supp.

Z 5

Jeffries v. Turkey Run Consolidated School Dist.,

492 F.2d 1 (7th Cir. 1974) 12

Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) . 9

Knarr v. Board of School Trustees of Griffith, In-

diana, 317 F.Supp. 832 (1970), aff'd 452 F.2d

,,,, 14

Kramer v. Scioto Darby School District, (U.S. D. C.

S. D. Ohio, E. D.) Case No, 72-40 „ 6

Lopez v. Williams, 372 F.Supp. 1279 (S. D. Ohio

BNO tek PORTS. · ·ͥwm 5, 6. 10

Lusk v. Estes, 361 F.Supp. 653 (N. D. Tex. 1973) 15

Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed.

2d 492 (1961) . 6

Orr v. Trinter, 29 Ohio Misc. 149, 444 F.2d 128

(1971), reversing 29 Ohio Misc. 62, 318 F.Supp.

% ” - 12

Parker v. Board of Edn. of Prince George, Md., 237

F.Supp. 222, 229 (D.C. Md. 1965), aff'd 348 F.2d

464, cert. denied 382 U.S. 1030, reh. den. 383

Jr t 14

vi.

Cases: Page

Pelisek v. Trevor State Graded School Dist. No.

7, Salem, Wis., 371 F.Supp. 1064 (E.D. Wis. 1974) 5

Pickering v. United States, 391 U.S. 563 (1968) 13

Porcelli v. Titas, 302 F.Supp. 726 (N.J. 1969) 5

Roth v. Bd. of Regents, 310 F.Supp. 972 (Wis.

1970), aff'd 446 F.2d 806 (7th Cir. 1971), rev.

and rem. on other grounds, 408 U.S. 56 . 16

Scheuer v. Rhodes, 94 S.Ct. 1683 (1974) ........ 8

Shaw v. Board of Edn., 17 Ohio Law Abs. 588

hh ñ eee 9, 11

Shehan v. Board of Trustees, Bloomsburg State Col -

lege, 501 F.2d 8) eee 9, 16

Sinard v. Board of Education, 473 F.2d 988 (2d

„ » 15

Sincock v. Obaro, 320 F.Supp. 1098 (D. Del. 1970) 7, 9

Singleton v. Vance County Board of Edn., 501 F.2d

K rer ee 5

State ex rel. Board of Education v. Gibson, 130

FF SE er re a 10

Sterzing v. Fort Bend Indep. Sch. Dist., 496 F.2d

OR GCP CE, DOPOD cc. vas ecg phen cohen ee 5

Thatcher v. Board of Trustees of Ohio State Uni-

versity, 58 Ohio Op. 45, 277 N.E.2d 818 (1971) 11

Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975) 9

Vanderzanden v. Trowell School District No. 71, 369

e Pe oop oO 5

Wayman v. Board of Education, 5 Ohio St. 2d 248

hùùoh!tttrt dune bases Dae 10

vil.

Page

Statutes and Other Authorities:

U.S. Constitution, Amendment! 2, 12, 13, 17

US. Constitution, Amendment X1 ......2, 3, 8, 11, 17

r 2, 3, 4, 6, 7, 8, 17

„ 1. 2, 3, 4, 5, 6, 17

28 U.S.C. $ 1343 ()))): 1

28 U.S.C. 5 1848 ((ů!õ)rꝛ „ 4

Ohio Revised Code

Section $313.203 ...... PN Gore een es eee ae @ 9

/// TET ee ee eee 11

Sections 2743.0 12743. 0! 11

cb 12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

FRED DOYLE,

Respondent,

vs.

MT. HEALTHY CITY SCHOOL DISTRICT

BOARD OF EDUCATION,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES OF AMERICA:

Petitioner, the Mt. Healthy City School District Board

of Education, respectfully petitions this Honorable Court

to grant a writ of certiorari to the United States Court

of Appeals for the Sixth Circuit to review a judgment of

that Court which affirmed the order of the United States

District Court, Southern District of Ohio, reinstating the

Respondent ard awarding him compensatory damages but

reversed the District Court as to the awar of attorneys’

fees.

2

OPINION OF THE COURTS BELOW

The decision and opinion of the United States Court

of Appeals for the Sixth Circuit is attached hereto at

App. pp. 18a-19a. The decision and opinion of the United

States District Court for the Southern District is attached

hereto at App. pp. la-17a. Neither opinion has been re-

ported officially.

JURISDICTION

The judgment of the Court of Appeals was entered on

December 10, 1975. The jurisdiction of this Court is

evoked under 28 U.S.C. § 1254 (1)

QUESTIONS PRESENTED

1. Whether the District Court has jurisdiction over this

suit since the Mt. Healthy Board of Education is not a

person within the meaning of 42 U.S.C. § 1983 and the

plaintiff could not properly contemplate $10,000 as. the

amount in controversy for a suit under 28 U.S.C. § 1331?

2. Whether the Mt. Healthy City School District Board

of Education is immune from suit under the sovereign

immunity protection of the Eleventh Amendment of the

United States Constitution?

3. Whether a Board of Education can be forced to give

a continuing contract to a non-tenured teacher it considers

too immature for the position, if one of the many factors

on which the Board's decision is based is a telephone call

to a local radio station, such call allegedly being within

the First Amendment rights of the teacher?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment I

Congress shall make no law . . . abridging the freedom

of speech

3

U.S. Constitution, Amendment XI

The judicial power of the Unit 1 States shall not be

construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by citizens

of another State, or by citizens or subjects of any foreign

State.

FEDERAL STATUTES INVOLVED

28 U.S. C., Section 1331

§ 1331. Federal question; amount in controversy; costs

(a) The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy ex-

ceeds the sum or value of $10,000, exclusive of interest

and costs, and arises under the Constitution, laws, or treaties

of the United States.

(b) Except when express provision therefor is other-

wise made in a statute of the United States, where the

plaintiff is finally adjudged to be entitled to recover less

than the sum or value of $10,000, computed without regard

to any setoff or counterclaim to which the defendant may

be adjudged to be entitled, and exclusive of interests and

costs, the district court may deny costs to the plaintiff

and, in addition, may impose costs on the plaintiff.

42 U.S.C., Section 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities se-

4

cured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress.

STATUTES INVOLVED

Section 2943.01-2743.02, Ohio Revised Code App. 20a

Section 3313.17, Ohio Revised Code .......... App. 20a

Section 3313.203, Ohio Revised Code App. 2la

Section 3319.11, Ohio Revised Code App. 2la

STATEMENT OF THE CASE

This case originated in a suit filed by Fred Doyle, Re-

spondent, against the Mt. Healthy Board of Education, its

members individually, and the Superintendent, for rein-

statement, compensatory and punitive du mages under 42

U.S.C. § 1983, 28 U.S.C. §§ 1331, 1343 (3) and 1343 (4).

Doyle alleged that his limited teaching contract was not

renewed in retaliation for the exercise of his constitutional-

ly protected First Amendment rights; in particular he

cited a telephone call to a local radio station criticizing

the faculty dress code. Petitioners responded that Doyle’s

contract was not renewed as the result of a routine annual

review of his performance as a teacher and not in retalia-

tion for the exercise of his constitutionally protected rights.

The District Court ordered the Board to reinstate Doyle

and to grant him a continuing contract. The Court award-

ed $5,158.00 as damages and an additional $6,343.16 in

attorneys’ fees. The Court further rendered judgment in

favor of the individual Board members and the superin-

tendent. Costs were to be assessed against the Board. In

its findings the Court concluded that one impermissible

reason — the telephone call to the radio station — played

a substantial part in Doyle’s non-renewal.

5

The Board appealed to the Court of Appeals for the

Sixth Circuit and that Court affirmed the reinstatement

and the compensatory damages but vacated the award of

attorney fees.

REASONS RELIED UPON FOR ALLOWANCE

OF THE WRIT

1. THE DISTRICT COURT DOES NOT HAVE

JURISDICTION OF THIS MATTER. |

a. A board of education is not a “person” under

42 US.C. § 1983 subject to money damages.

Section 1983 of Title 42 of the United States Code pro-

vides in pertinent part that every person who under

color of state law . . . subjects or causes any citizen to

be deprived of any civil rights . . . is liable for personal

injuries.”

Many jurisdictions have held that school boards are not

persons under 42 U.S.C. § 1983. See Singleton v. Vance

County Board of Edn., 501 F.2d 429 (4th Cir. 1974);

Sterzing v. Fort Bend Indep. Sch. Dist., 496 F.2d 92 (5th

Cir. 1974); Brown v. Board of Education of City of Chi-

cago, 386 F.Supp. 110 (D.C. Ill. 1974); Howell v. Winn

Parish School Board, 377 F.Supp. 816 (D.C. La. 1974);

Lopez v. Williams, 372 F.Supp. 1279 (S.D. Ohio 1973) ;

Pelisek v. Trevor Siate Graded School Dist. No. 7, Salem

Wis., 371 F.Supp. 1064 (E.D. Wis. 1974) ; Vanderzanden v.

Lrowell School District No. 71, 369 F.Supp. 67 (Ore.

1974) ; and Bichrest v. School Dist. of Philadelphia, 346

F.Supp. 249 (E. D. Pa. 1972). Courtney v. School Dist.

No. 1, Lincoln County, Wyo., 371 F.Supp. 401, 403 (Wyo.

1974), and Porcelli v. Titas, 302 F.Supp. 726, 730 (N. J.

1969), both recognized the issue as a valid one to be de-

6

cided on the basis of the particular state law. The Ohio

case — Lopez v. Williams, supra — held boards were not

persons“ under Section 1983.

Cases arising under 42 U.S.C. § 1983 have distinguished

between plaintiffs who ask for injunctive or other equitable

relief and those seeking money damages. The latter suits

have regularly been barred. Monroe v. Pape, 365 U.S. 167,

187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). In City of

Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 222, 37 L.Ed.2d

109 (1973), the Court went further to state that Congress

never intended courts to distinguish between the mean-

ing of persons“ in Section 1983 depending on whether

equitable or money remedies were sought; in neither case

were government entities “persons” under Section 1983.

In Lopez v. Williams, 372 F.Supp. 1279 (S.D. Ohio,

E.D. 1973), the court reached the same conclusion. Lopez

was a Section 1983 suit brought by students against the

school district for improper suspension. The court held

that the “board of education was a political subdivision

of the state and was therefore not a ‘person’ within the

meaning of the federal civil rights statute, 42 U.S. C. A.

§ 1983. Accord: Kramer v. Scioto Darby School District,

(U.S.D.C., S.D. Ohio, E.D.), Case No. 72-406, decision

March 7, 1974; Gilliam v. Lewis, et al., (U.S.D.C., S. D.

Ohio, E.D.) , Case No. C2-73-287, decision March 26, 1974.

It follows that the Mt. Healthy Board of Education is not

subject to suit under 42 U.S.C. § 1983.

b. Plaintiff has never had a claim that could be

valued at $10,000 and therefore can not bring

the suit under 28 U.S.C. § 1331.

In discussing the relationship between 42 U.S.C. § 1983,

which grants immunity to municipal corporations, and 28

7

U.S.C. § 1331, which does not, the Second Circuit in Brandt

v. Town of Milton, 43 LW 2388 (2/14/75), noted that

the two were consistent in that § 1331 “preserves the mu-

nicipality’s immunity as to actions not involving this mini-

mum sum.” Consequently a close scrutiny of the amount

in controversy is required before § 1331 jurisdiction

attaches.

Doyle originally asked for reinstatement and $50,000

in punitive damages, court costs and attorney fees. Section

1331 provides that, in computing the amount in contro-

versy, interest and costs are to be excluded. Under Alyeska

v. Wilderness Society, 421 U.S. 240 (1975), the Court

reasoned that attorneys’ fees were like costs and would not

be awarded absent statutory authority. On the basis of

Alyeska, the Sixth Circuit held in the instant action that

attorneys’ fees would not be granted. In Sincock v. Obaro,

$20 F.Supp. 1098 (D. Del. 1970), and Cupples Co. Mfg.

v. Farmers & Merchants State Bank, 390 F.2d 184 (5th Cir.

1968), jurisdiction was refused for failure to have a suf-

ficient amount in controversy after attorneys fees were

excluded.

The District Court in this case refused to award punitive

damages, therefore plaintiff's only claim is for reinstate-

ment. The value of the reinstatement claim, however,

was never as much as $10,000. Doyle filed the suit July

13, 1971 yet at that time, according to his own testimony,

he had already found other employment at Miami Trace.

Consequently, the most he could anticipate in damages

was the difference between his anticipated salary at Mt.

Healthy and his actual wages at Miami Trace. This amount

was calculated by the District Court to be a total of $5,-

158.00 for the three years it took for the case to come to

judgment. When the suit was filed the difference in in-

come anticipated for the coming year could not have been

more than $2,500. In sum, Doyle lacked the necessary

$10,000 amount in controversy to bring the suit under 28

U.S.C. § 1331.

2. THE MT. HEALTHY CITY SCHOOL DIS-

TRICT BOARD OF EDUCATION IS IMMUNE FROM

SUIT UNDER THE SOVEREIGN IMMUNITY PRO.

TECTION OF THE ELEVENTH AMENDMENT OF

THE UNITED STATES CONSTITUTION.

a. The Mt. Healthy Board of Education is a gov-

ernmental entity entitled to Eleventh Amend-

ment immunity from money damages.

The Eleventh Amendment of the United States Consti-

tution provides that no state is subject to suit by a citizen

of another state. The Supreme Court in Hans v. Louisiana,

134 US. 1, 10 S.Ct. 504 (1890), extended the doctrine of

sovereign immunity to suits brought by citizens against their

own state. Accord: Scheuer v. Rhodes, 94 S. Ct. 1683

(1974) .

The question as to whether a state agency, such as

the local board of education, is entitled to sovereign im-

munity is for the federal court to decide. However, that

decision must be made in the context of state law. In

Gordenstein v. University of Delaware, 381 F.Supp. 718,

720 (Del. 1974), the court described the relationship.

“In determining whether an entity like the Universi

is so closely related to the state as to share its Eleventh

Amendment shield, it will ordinarily be the law of

the state which defines the relationship. State law

is the context in which the matter is to be determined,

but it does not provide the controlling rule of law.”

——

4

In Ohio, the legislative scheme assumes that the board

of education is immune from money damages. Section

3313.203 of the Ohio Revised Code provides that boards

may purchase liability insurance for school officers, em-

ployees and pupils, but boards are not given similar authori-

ty on their own behalf.

The legislative assumption is supported by Ohio case

law. Courts have repeatedly held school boards not li-

able in tort actions. Hall v. Board of Edn., 32 Ohio App.

2d 297 (1972) ; Shaw v. Board of Edn., 17 Ohio Law Abs.

588 (1934); and Board of Edn. v. Volk, 72 Ohio St. 469

(1905). The rationale for immunity in these cases is that

since the board is not authorized to raise taxes or sell prop-

erty to pay a tort claim, “surely the law docs not contem-

plate a right of action in the Plaintiff without any remedy

to enforce it.” Volk, supra at 480. This pocketbook test

has been applied in federal jurisdictions with the same

result. See Jordan v. Gilligan, 500 F.2d 701 (6th Cir.

1974); Shehan v. Board of Trustees, Bloomsburg State

College, 501 F.2d 31 (3rd Cir.), and Sincock v. Obana,

320 F.Supp. 1098 (Del. 1970) . See also Thonen v. Jenkins,

517 F.2d 3 (4th Cir. 1975).

When jurisdictions have permitted money damages

against boards of education the same pocketbook test has

been applied and the court has found that the school

authority had the power and resources to pay the judg-

ment. In Gordenstein v. University of Delaware, 381

F.Supp. 718 (1974), the court found that the University

could raise the funds without further action by the state

legislature, 381 F.Supp. at 721, and in Fabrizio & Martin,

Inc. v. Board of Edn. of Central School District No. 2,

290 F.Supp. 945 (N.Y. 1968), state law specifically au-

thorized the school district to pay judgments against the

school district by levying taxes. 290 F.Supp. at 948. No

10

such finding was made in the instant case and there is no

similar legislation in Ohio.

While some courts, for example Harkless v. Sweeney

Indep. School Dist., 427 F.2d 319 (5th Cir. 1970), cert.

denied, 400 U.S. 991 (1971), have held that claims for

backpay by teachers are part of the equitable relief for

reinstatement and, therefore, not damages, that has not

been the rule in Ohio. The only school cases we have

found in Ohio where immunity has not been a bar to suit

have involved equitable damages when the public treasury

is not directly at issue. State ex rel. Board of Education v.

Gibson, 130 Ohio St. 318 (1935), involved the issue of

whether the plaintiff board was immune from the statute

of limitations and therefore in a position to collect tuition

from non-residents even though the six year limitation had

lapsed. Akron Board of Education v. State Board of Edu-

cation, 490 F.2d 1285, cert. den. 417 U.S. 932 (6th Cir.

1974) , was to restrain the transfer of land to an adjoining

district. Wayman v. Board of Education, 5 Ohio St. 2d 248

(1966), dealt with whether a Board could be ordered to

stop maintaining a nuisance (a parking lot). Lopez v.

Williams, 372 F.Supp. 1279 (S.D. Ohio 1973), aff'd sub

nom. Goss v. Lopez, 419 U.S. 565 (1975), was concerned

with the constitutionality of the pupil’s suspension; dam-

ages were not in contention. Doyle, unlike these plaintiffs,

is claiming more than $10,000 in damages. Consequently,

the facts in the present case do not merit overturning the

Ohio precedent.

b. The Board’s immunity has not been waived.

The Ohio Constitution provides in Article 1, Section

16, that suits may be brought against the State as pro-

vided by law. Board of County Commissioners of Mahoning

11

County v. Rhodes, 86 Ohio Law Abs. 390, 177 N. E. 2d

557 (C. P. Franklin County, 1960), explained that Article

1, Section 16, was not self-executing. Absent enabling

legislation, a suit may not be brought. The state legislature

has not waived immunity for school boards. Sections

2743.01-2743.20 of the Ohio Revised Code, which waive

state immunity and create a special court of claims for such

suits, specifically exclude school districts from those gov-

ernmental agencies to which the waiver applies.

Section 3313.17 of the Revised Code describes the pow-

ers of boards of education which include the capacity of

“suing or being sued.” The statute, however, has been con-

strued very narrowly; boards have not been held liable in

tort claims. Shaw v. Bd. of Edn., supra; Hall v. Bd. of

Edn., supra; Bd. of Edn. v. Volk, supra.

Brown v. Board of Edn., 20 Ohio St. 2d 68 (1969), con-

strued Section 3313.17 of the Revised Code to permit suit

in a state court only in conjunction with other powers con-

ferred by statute, including that of contracting and being

contracted with.” Since boards of education have specific

powers to acquire real property, the board in Brown could

be sued for adverse possession. In the present case, how-

ever, the action is in tort, and, therefore, the Volk analysis

applies.“

Finally it should be noted that courts have repeatedly

held that neither the Fourteenth Amendment nor the Civil

Rights Act constitutes an effective waiver of sovereign im-

munity. See Corbean v. Xenia City Board of Edn., 366

F.2d 480 (6th Cir. 1966) ; Cuiska v. City of Mansfield, 250

F.2d 700 (6th Cir. 1957) ; Thatcher v. Board of Trustees of

Ohio State University, 58 Ohio Op. 45, 277 N.E.2d 818

(1971).

12

3. THE COURT BELOW ERRED IN CONCLUD-

ING THAT THE BOARD REFUSED TO REIN-

STATE DOYLE FOR A CONSTITUTIONALLY IM-

PERMISSIBLE REASON.

a. The Board was not compelled to give any rea-

sons for its decision to not renew Doyle’s limi-

ted contract. In including the telephone call

to the radio station as an illustration of Doyle’s

lack of tact, the Superintendent did not violate

the teacher’s First Amendment rights.

Fred Doyle had a limited contract with the Mt. Healthy

Board. Section 3319.11, Ohio Revised Code, sets out the

procedures for employment of teachers on a limited con-

tract; should the board choose not to renew a limited

contract, it is not required to give reasons for that decision.

In De Long v. Board of Education, 37 Ohio App. 2d 69,

306 N.E.2d 774, aff'd 36 Ohio St. 2d 62 (1973), the court

upheld the refusal of a school board to rehire a teacher

without giving any reasons at all. Similarly, Orr v. Trinter,

29 Ohio Misc. 149, 444 F.2d 128 (1971), reversing 29 Ohio

Misc. 62, 318 F.Supp. 1041 (1970), held that a public

school teacher who has not attained tenure status and

whose contract of employment is not renewed does not

have a constitutional right to be told the reason for the

non-renewal, nor toa hearing. See also Conque v. Gausche,

5th Cir. 3/14/75, cert. denied 10/14/75; Board of Trustees

of University of Tennessee v. Soni, 513 F.2d 347 (6th Cir.

1975), petition for cert. filed 7/29/75; Cusumano v. Ratch-

ford, 507 F.2d 980 (8th Cir. 1975) ; Jeffries v. Turkey Run

Consolidated School Dist., 492 F.2d 1 (7th Cir. 1974).

It is not disputed that the Board could have not re-

newed Doyle’s contract without giving any reason. In

fact, in its official communication, the Board did just that.

Doyle's claim, however, stems from a letter written at

13

his request by the Superintendent. In that letter the

Superintendent gave one reason for the non-renewal:

“You have shown a notable lack of tact in handling

professional matters which leaves much doubt as to

your sincerity in establishing good school relation-

ships.“

The Superintendent offered two illustrations of Doyle's

lack of tact: an obscene gesture he made to students and

the phone call. The letter standing alone does not justify

a conclusion that the Board based its decision substantially

on the phone call because (1) the Superintendent wrote

the letter and (2) in it expressly stated that the reason

was Doyle’s lack of tact. When the Board members were

questioned individually as to the reasons for their de-

cision they mentioned several incidents in which they

thought Doyle had failed to show an ability to handle his

responsibilities including an incident arising out of an al-

tercation wtih a faculty member which resulted in the

school having to be closed at noon, a problem occurring

when Doyle confronted the cafeteria staff demanding a

larger portion of spaghetti, a time when Doyle referred

to some trouble-making boys as “sons of bitches,” and his

management of a cafeteria fighting incident, as well as

the obscene gesture and phone call.

The constitutional test for the violation of a teacher's

First Amendment rights was developed in Pickering v.

U.S., 391 U.S. 563 (1968), where the court considered the

dismissal of a teacher who sent a letter to a local newspaper

critical of the manner in which the Board had handled

a bond issue. In holding in favor of the teacher, the Court

noted the need to balance the First Amendment claims

of the teacher against the need for ordexly school admin-

istration. 391 U.S. at 568.

14

In applying this balancing test an Indiana court in

Knarr v. Board of School Trustees of Griffith, Indiana,

317 F.Supp. 832 (1970), aff'd 452 F.2d 649 (7th Cir.

1972), refused to order the reinstateinent of a teacher

dismissed in part because of insubordination. One ex-

ample of the teacher’s improper behavior occurred when

he was requested to discuss the school dress code and

enlist student support. Instead he advised his class that

they could defeat the administration by violating the code

en masse because the school could not send everyone home.

Other reasons included his disparaging comments about

school administrators and other personnel. Plaintiff had

alieged he was not given tenure because of his union ac-

tivities but the court did not sustain such a finding.

The district court noted the broad discretion entrusted to

the Board especially when considering whether to offer

tenure and concluded in 317 F.Supp. at 836:

“In denying Plaintiff tenure the school administrators

were not acting with a desire to deprive Plaintiff of

his freedoms of speech and association. The First

Amendment freedoms of a teacher are not necessarily

affected by the right of the school board to retain only

those teachers who adequately discharge their teaching

responsibilities and do not disrupt the efficient op-

eration of the school. To the extent that this is a re-

striction of the freedom of a teacher, it is only inci-

dental to the exercise of the school board’s duty to

maintain good schools.“

Similarly, in Parker v. Board of Edn. of Prince George

County, Md., 237 F.Supp. 222, 229 (D.C. Md. 1965) , aff d

348 F.2d 464, cert. denied 382 U.S. 1030, reh. den. 383

U.S. 939, the court noted that the first amendment rights

of a teacher are not absolute:

Where the abandonment of the abstract right of free

speech results from government action taken for the

15

protection of other substantial public rights, no con-

stitutional deprivation will be found to exist.” Ameri-

can Communications Ass’n, CIO v. Douds, 339 U.S.

382 (1950).

The state legislature has given the Mt. Healthy Board

broad discretion to hire faculty. The Mt. Healthy Board

members repeatedly testified that their decision was based

on several incidents which conveyed to them the fact that

Doyle had failed to demonstrate the maturity necessary to

make a good teacher. In coming to that decision the Board

acted within the lawful limits of its discretion. Doyle's

behavior had disrupted the good operations of the school.

Under Pickering, the Board is entitled to judgment in its

favor.

b. The federal courts have not uniformly held

that the presence of one constitutionally im-

permissible factor invalidates a school board's

employment decision.

Although the Sixth Circuit Court of Appeals presumed

and Respondent cited several cases as authority for the

proposition that a non-renewa! is constitutionally imper-

missible even if the teacher's exercise of First Amendment

rights was only partially a factor in the non-renewal, no

prior court has required a reinstatement unless the consti-

tutionally impermissible reason played a substantial part in

the non-renewal. Gieringer v. Center School Dist. No. 58,

477 F.2d 1164 (8th Cir. 1973) ; Lusk v. Estes, 361 F.Supp.

653 (N.D. Tex. 1973). In Gray v. Union County Inter-

mediate Education Dist., 520 F.2d 803 (9th Cir. 1975),

Sinard v. Board of Education, 473 F.2d 988 (2d Cir. 1973),

Cook County Teachers Union Local 1600 AFT v. Boyd,

456 F.2d 882 (7th Cir. 1971), cert. den. 409 U.S. 848, reh.

den. 414 U.S. 883 (1973), and Fluker v. Alabama State

16

Board of Education, 441 F.2d 201 (5th Cir. 1971), courts

upheld the Board’s decision despite the teacher's claim.

Skehan v. Bd. of Trustees of Bloomsburg State College,

501 F.2d 31 (3d Cir. 1974), and Roth v. Bd. of Regents,

310 F.Supp. 972 (Wis. 1970), aff'd 446 F.2d 806 (7th Cir.

1971), rev. and rem. on other grounds, 408 U.S. 564, in-

clude dicta that non-renewal will not be affirmed if par-

tially for impermissible reasons, but neither court holds

that one impermissible factor contaminates the entire de-

cision. In Skehan, the court remanded the case to deter-

mine inter alia whether the facts supported the teacher's

claim (501 F.2d at 45), and in Roth the issue of whether

the teacher was fired even in part for constitutionally pro-

tected activity was never decided because the court ruled

instead on the procedural due process point (310 F.

Supp. at 983).

Danse v. Bates, 369 F.Supp. 139 (N.D. Ky. 1973), clari-

fies the issue for there the court distinguished between

three principals and one teacher who were demoted solely

in retaliation for constitutionally protected activity (369

F.Supp. at 148) and two teachers who were not offered

contracts at the same time and who had engaged in the

same activity but for whom the court found other valid

reasons for the Board’s decision. Although the court re-

instated four of the plaintiffs, the decision of the school

board was affirmed in the case of the two teachers be-

cause the court found it justified by reasons unrelated to

the First Amendment activities.

In Callahan v. Superintendent of Edn. of Leske County,

Miss., 505 F.2d 83, 513 F.2d 51 (5th Cir. 1975), cert.

denied 11/4/75, the court upheld the non-renewal of a

non-tenured superintendent whose employment was ter-

minated because of community opposition, even though

17

some of the opposition was racially motivated by the super-

intendent's efforts to comply with desegregation orders.

That case, like the present one, was tried on the basis

of the First and Fourteenth Amendments and 42 USC

§ 1983. The constitutionally impermissible factor did not

contaminate the Board’s decision. The record in the in-

stant case, as in Callahan, supplies ample acceptable reasons

to warrant the Board’s non-renewal decision; their deci-

sion should be upheld.

CONCLUSION

Jurisdiction in this case should never have been granted.

Plaintiff did not have a claim of $10,000 to qualify under

28 U.S.C. § 1331 and jurisdiction under 42 U.S.C. § 1983

was not proper. The Supreme Court should consider this

suit to resolve the inconsistency and confusion among the

lower courts about the application of 42 U.S. C. § 1983

to local public school boards.

With the increasing involvement of courts in review

of the decision making procedures of school boards the is-

sue of Eleventh Amendment immunity for schools has

taken on a new trgency. A uniform rule is badly needed

so that the agencies committed to the education of our chil-

dren can take the precautions necessary to protect their

scarce dollars from the type of claim alleged herein. At

the very least, the facts of this case do not merit over-

turning the Ohio rule of protection from monetary claims.

Even assuming jurisdiction and no immunity, assump-

tions we do not concede, the decision of the Court of

Appeals should be reversed because the Mt. Healthy City

School Board did not violate Fred Doyle’s First Amend-

ment rights. Under the law Doyle was not entitied to

reasons for his dismissal. The reasons given in testimony

18

by the Board members indicate that their decision was not

in retaliation for the telephone call to the radio station.

Courts should not interfere in the daily operation of the

schools absent a showing of a constitutional violation.

Respectfully submitted,

PHILIP S. OLINGER

Attorney for Appellant

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 8044

FRED DOYLE,

1965 Connecticut Avenue, Cincinnati, Ohio

Plaintiff,

v.

MT. HEALTHY CITY SCHOOL DISTRICT

BOARD OF EDUCATION; REX RALPH,

Individually and as Superintendent; WILLIAM

C. LITTMEIER; WILLIAM M. MORRIS;

MRS. MARCIA HAUPP and MRS.

VIVIAN CLARK,

Defendants.

FINDINGS AND CONCLUSIONS

(Filed September 9, 1974)

Basically this is a civil rights case (42 U.S.C. § 1983)

involving the failure to renew the contract of the plaintiff,

a nontenured teacher, in the spring of 1971. It is claimed,

and the claim appears well founded, that this Court has

jurisdiction under 28 U.S.C. § 1331 (federal question)

since it appears that the plaintiff's salary during the sub-

sequent school year (1971-72), and entirely apart from

tenure, would have amounted to more than $10,000.00.

la

2a

The plaintiff graduated from Miami University in Ox-

ford, Ohio, with a bachelor of science in education in

1966. He subsequently acquired an MA in 1968. His

basic certification was as a professional high school teacher.

In 1966 and at age 24, he was employed by the defendant

Mt. Healthy Board of Education as a business teacher in the

Mt. Healthy, Ohio school system and specifically in the

high school.

The plaintiff taught in the high school until the summer

of 1971. The years 1966-67, 1967-68, and 1968-69 involved

one-year contracts. In 1969 he was tendered and accepted a

two-year contract covering the years 1969-70 and 1970-71.

Up to that point he had no tenure under Ohio law.

In 1969, at the end of the school year, he was com-

mended for an excellent rating as a teacher” by the Mt.

Healthy Board, that action involving a merit raise.

In April of 1971 he was notified that the Mt. Healthy

Board would not extend to him a contract for the coming

year — 1971-72.

The decision of the Board with respect to that year, i.e.,

1971-72, to tender or not to tender the plaintiff a further

contract for another year or longer involved greater sig-

nificance than the same decision in the previous year or

years. The extension of a contract and his acceptance

would have changed his status irom a nontenured to a

tenured teacher, such being the year of tenure acquisition

under Ohio law.

This case was filed in July, 1971, against the Mt. Healthy

Board as such; the five then (1971) members of that Board

as such and individually (two are no longer on the Board) ;

and the then Superintendent of the school system (who

has since retired) .

—

$a

The plaintiff claims that the failure to renew and/or ex-

tend him tenure in 1971 was due to his exercise of his

federal right of free speech and assembly and/or as a

punishment therefor. The defendants claim that it was

due to the plaintiff's “immaturity” and lack of tact.“ It

is noted that such factors are included as important in the

standard Ohio forms used in evaluating student teaching.

The plaintiff seeks a reinstatement injunction with a

back-pay award and attorney’s fees.

During the plaintiff's first three school years as a teach-

er at Mt. Healthy his performance was, to say the least,

quite satisfactory. Over the entire span of 1961-71, (a)

there is no hint of criticism of his private or personal ac-

tivities; (b) it is conceded that he was and is a good

teacher in the sense that he knew his subject and had the

ability to teach it effectively in the classroom; and (c) his

school related extra-curricular activity was good. He, for

instance, founded and conducted a new club activity called

Future Businessment of America Club” for the students,

which all concerned compliment. He managed, from a

faculty point of view, the school paper toward the end

of his service, and turned its operation from red to black.

He was prominently and favorably associated with Boy

Scout and Explorer activities.

Events which brought about this case occurred basically

in the 1969-71 period.

For some years prior to 1969 there had been an organi-

zation of the employees of the Mt. Healthy School System

called the Mt. Healthy Education Association. Its mem-

bers included what in an industrial field would have been

described as both labor and management. In other words,

active teachers were eligible as well as principals, assistant

principals, school superintendents, etc. Its activities were

4a

accented in the social field and in the general educational

field. It had not overly concerned itself with the prob-

lems of teachers qua teachers vs. board, etc. qua employ-

er. In 1969, the plaintiff was elected as president of this

organization to serve for the 1969-70 term. Shortly after

his election, the Education Association was reorganized.

It adopted a new constitution which limited its member-

ship to “full-time class room teachers, counsellors and li-

brarians.“ More importantly, it devoted itself actively to

the collective problems of the teachers vis-a-vis the super-

intendent and board, and, either late in 1969 or early

in 1970, the Association as such (now named the Mt.

Healthy Teachers Association) listed nine items of collec-

tive interest with respect to which its representatives de-

sired to negotiate with the board as such. The items are

the ones that might be expected and need not be listed.

Typically the Association, under the ieadership of the plain-

tiff, made some comparative studies of the salaries of sur-

rounding school boards and studied further the records of

the board with respect to the abilities of the board.

There were two general areas of procedural rubbing.

The first might be described in this manner: The rep-

resentatives of the Teachers Association wished to negotiate

on all nine items and directly with the board and not

through the superintendent. The board was willing to

talk about six, but refused to talk about three as non-

negotiable. Secondly, the board stood on the proposition

that the negotiations had to be carried out by the superin-

tendent directly. There existed a sort of impasse and the

overall situation in early 1970 could be aptly described as

tense. The three leaders of the Association included the

plaintiff and two other teachers named Henn and - Jewett.

For instance, in early February, 1970, the board found it

necessary to circulate to all teachers a reply to Doyle as

5a

President made in response to the “numerous complaints

against the board and administration” filed by the plain-

tiff and likewise circularized to the membership. On

February 18 of that year a lengthy list or recommendations

for amendments to the board policy was filed over the sig-

nature of the plaintiff. At this point the membership

of the teachers association included approximately 250 out

of 290 eligible.

On the 19th, again over Doyle’s signature, there was de-

livered to the board a communication which in effect in-

dicated that if the board did not begin good faith nego-

tiations on the nine points by February 26, a strike vote

would be considered.

This case from now on deals with a number of specific

instances as relevant to the 1971 board decision not to

renew.

We will adopt the names used during the trial, and the

first would be called the “Hinkle” incident. On Friday,

February 20, 1970, a fellow teacher named Hinkle came

to the plaintiff's office. Hinkle protested some action or

claim of the plaintiff and there was a verbal argument and

eventually Hinkle slapped the plaintiff. The plainuft

went to the principal’s office and the principal got Hinkle

and brought him to his office and there was a discussion

which resulted in Hinkle apologizing and the principal

recommending to the plaintiff that he accept the apology

and forget it. The plaintiff refused to “accept the apolo-

gy.” This in effect, at least in the context of this case,

apparently meant that the plaintiff was not satisfied with

that disposition and would want to appeal that disposition

first to the superintendent and secondly, if not successful

there, to the board. Subsequently the parties met with the

superintendent, with the same result. At the start of the

6a

school day on the following Monday, the 23rd, and at the

opening of school, the participants (the plaintiff and

Hinkle) were suspended and sent home. The result was

a teachers walk-out at the high school, which for practical

purposes shut down the school and sent home the pupils

for that day. This was followed by a school board meet-

ing and, as a result of all this, both suspensions were lifted

with no prejudice to the record in respect of either par-

ticipant; the board agreed to negotiate on all nine points;

the board agreed to and did employ an attorney, and a

specialist in such matters, to represent it insnegotiations;

negotiations on behalf of the board were to be carried

out through the superintendent and this lawyer; the ne-

gotiations with the teachers were to be carried on by a

team represented by Doyle and the other two teacher lead-

ers heretofore named. Evidently this resulted eventually

in the negotiation of mutually agreed upon solutions, al-

though whatever solution was with respect to these de-

mands is not a part of this record. The above is described

in this record as the Hinkle incident and it is pointed

to by the plaintiff as indicative of the real reason for his

eventual disposition, and is pointed to by the defendants

as evidencing a lack of “tact” — presumptively on the

the theory that the recommendations of the higher authori-

ties should have been accepted and would have been by a

tactful person.

The remaining incidents which we will outline, without

any particular dating, occurred at or about the same time

and between that time and April of 1971 when the board

determined not to renew, and the remaining incidents

are relied on by the defendants as demonstrating the reason

for the failure to renew. They are called: “gesture,” spa-

ghetti,” “radio,” “SOB’s,” “direct dealing.”

We will take the last one first. At one point during

7a

the 1970 negotiations, the plaintiff prevailed on one of

the board members to arrange for a meeting between the

board as such, although informally, and the teachers as-

sociation negotiating team. At the appointed time the

board members walked into the appointed place and,

instead of finding the team, were confronted by most of

the membership of the association. Bearing in mind that

one of the points of difference between the board and

the association involved just this sort of thing, it was

certainly a tactless thing to do and caused rather un-

favorable reaction from, particularly, the board member

who had negotiated the meeting. That particular board

member happens to have a long record of AFL/CIO union

membership in his ordinary full-time occupation.

Doyle objected to the amount of food, to-wit spaghetti

(hence, the name), that had been served to him in the

cafeteria. Technically, he had nothing to do supervisory-

wise with any oi the cafeteria help. The objection should

have been lodged with the principal. However, it was

not, and it led to a rather foolish argument during cafe-

teria hours between Doyle and the cafeteria help as a part

of which Doyle found occasion to call the help “stupid.”

This resulted in a complaint by the kitchen authority to

higher authority, a confession by Doyle that he was wrong

and an appearance by him in the cafeteria for apology

purposes, which resulted in another go-round.

The SOB incident: In connection with a disciplinary

complaint, Doyle, in the presence of an assistant principal

and three or four involved students, referred to the stu-

dents as “sons of bitches. The appellation was heard by

both the principal and the students involved. That, of

course, does demonstrate, in any language, a lack of ma-

turity and tact.

8a

The “gesture” incident is described in this record in a

file memorandum of the assistant principal copied below.

“Earlier in the year Mr. Doyle and four girl students

had a little problem over the procedure that Mr. Doyle

follows in supervising the cafeteria during lunch time.

Because of the fact that the snack bar is needed fifth

period for a study hall, Mr. Doyle tries to start getting

things cleared up around 12:15. The girls felt this

was unfair, and they began to make an obvious effort

to slow things up as much as possible. After a couple

days of this, Mr. Doyle confronted them on the situa-

tion and a heated verbal dispute ensued. During or

at the end of the argument, Mr. Doyle gave the girls

the two-fingered gesture and, of course, the girls re-

sponded with their own gesture.

Mr. Doyle came to me and told me of the problem

and the names of the four girls involved. He told

me that he knew he had over-reacted and all he wanted

to do was talk to the girls in order to get things straight-

ened out.

“I called the girls to the office and Mr. Doyle did most

of the talking. I only got involved when one girl

began acting very rude and started getting disrespect-

ful. During the course of the conversation, Mr. Doyle

apologized for his actions and conveyed the reasons for

the procedure followed in supervising the cafeteria.

“Certainly, this type of action, provoked or unpro-

voked, is not the type of action that should be forth-

coming from a mature adult.

/s/ Walter Peters

Walter Peters

Assistant Principal”

The above needs this explanation. In what might be

called the pig Latin of today, or perhaps more accurately

high school sign language, the two-fingered gesture means

9a

“bull —” and the one-fingered gesture means “screw you.“

This incident would undoubtedly give a school board pause

in connection with the extension of a tenure contract.

The final incident is referred to as the “radio” incident.

In February of 1971, the principal at the high school cir-

culated to the various teachers a memorandum on teacher

dress and appearance. It was a rather mild page and a

half affair. The plaintiff promptly called it into a radio

station in Cincinnati with which he had some established

connection, which radio station promptly repeated it in

substance on the air, with the comment that might be

expected from a radio station specializing in acquiring

young listeners. The memorandum had been prompted

in the first place by the relationship between teachers’

dress and public support in bond issues and that relation-

ship is established in this record. The principal, who had

an idea that publication was at Doyle’s behest, called him

on the carpet for it. Doyle apologized, agreeing with

the principal's point that Doyle should have made some

effort to give any criticism he had of it to the proper au-

thority before going to any outside publication. Once

again the incident is related to tact and maturity and all

concerned must recognize that Doyle’s contact with the

radio station was a basic First Amendment right. On the

other hand, there are tactful ways of exercising rights,

or untactful ways; or, if one would prefer, there are mature

ways and immature ways, and in any sort of organization im-

mediate appeal to the outside is recognized as not desirable

until its necessity is established.

Each year in the spring teachers are evaluated by the

superintendent for purposes of the tender of then optional

contracts in particular. The superintendent then reports

to the board his recommendations. This was done in

March of 1971 and specifically on March 17 the recom-

10a

mendation with respect to the teachers involved were made

to the board. With respect to Doyle the recommendation

was that the board not enter into a new contract. The

same recommendation was made with respect to four other

high school teachers and five elementary school teachers,

and the recommendation in each instance was adopted

formally by the board. The superintendent and each of

the four board members, who testified in this case, testi-

fied that his or her vote or recommendation was not based

in any way on any activity of the plaintiff in the free speech

or assemblage field. The board members, of course, tes-

tified, in addition, that they relied on the recommendation

of the superintendent.

On April 2, 1971, the plaintiff was notified that the

school would not extend to him a contract during the com-

ing year. He asked for a statement of reasons and on the

15th he received a statement which cited “lack of tact“

and gave as two examples the radio incident and the ges-

ture incident.

It is important to note that while several other mem-

bers of the teachers association, notably the ones above

named, engaged in extensive activity along with the plain-

tiff with at least one of them being vulnerable from a

non-tenure position, but nonetheless the other union-activi-

ty teachers were contract renewed. This is somewhat of

an indication of a reason in the plaintiff's case. In addition,

while it is apparent that the members of the association

went up in arms in February of 1970 at the suspension,

there appears to have been no reaction at all by the as-

sociation to the failure to renew the contract in April of

1971. It is true that at the former time the plaintiff was

president of the association, which he was not at the latter

time; on the other hand, he was a member of the executive

committee at the latter time.

lla

Subsequently, the plaintiff secured employment at the

Miami Trace Local School District in Washington Court

House, Ohio, and for the three school years — 1971, 1972,

and 1973 — has received wages of $29,127.00. If he had

been employed through the same years with the Mt.

Healthy Board, he would have received an aggregate of

$34,285.00 — a monetary damage differential amounting to

approximately $5,150.00 for the oeriod involved.

The plaintiff's reasonable attorney's fees, including rea-

sonable expenses, to date for the prosecution of this case

amount to $6,343.16. Of that amount $2,539.98 has been

paid to the plaintiff's counsel by a statewide teachers as-

sociation of which the plaintiff is and has been a member.

The ultimate question of fact in this, as well as any case

like this, is “whether the failure of the board to renew

plaintiff's contract was because of his exercise of First

Amendment rights.” See George v. Conneaut, 472 F. 2d

132 (6th Cir. 1972). The plaintiff, of course, has the

burden of proving just that by a preponderance. See

Fluker v. Alabama, 441 F. 2d 201 (5th Cir. 1970).

Under Ohio law (Chapter 3313 Ohio Revised Code)

the school board is a subdivision of the state and the

board members are state officers, as is the school super-

intendent. Board members are selected at popular elec-

tions and for ali practical purposes serve without pay. The

superintendent is required to report on the teaching staff

annually and is specifically required (3319.11) to recom-

mend annually to the board in respect of the future of

teachers not already tenured. A broad discretion in the

employment of teachers (non-tenured) is devolved upon

the Board and Superintendent. In fact, a teacher not

under continuance contract (tenure) may be denied re-

employment for no reason at all. Generally the situation

lends itself to a “state officer” or “broad discretion” de-

12a

scription — whether from the point of view of the board

or superintendent.

No member of the Board acted with any malice. That

is true of the Superintendent. In fact, as this Court

sees it and finds, both the Board and the Superintendent

were faced with a situation in which there did exist in fact

reason — (see James v. West Virginia, 322 F. Supp. 217

(S.D. W. Va. 1971, aff. 448 F. 2d 785 (4th Cir. 1971))

independent of any First Amendment rights or exercise

thereof, to not extend tenure. It is important to note that

the new contract involved “tenure” and the record must

be viewed with that in mind (i. e., prior recommendations

and evaluation lose some force a/c not made in a similar

situation). As we see it and find as a fact, the Super-

intendent and the Board were faced with a situation in

which there were a number of moving causes, some per-

missible and some not permissible. The action based

thereon, whatever its legal results, cannot be described as

arbitrary or retaliatory or malicious or marked by bad

faith.

Conclusions

1) If a non-permissible reason, e.g., exercise of First

Amendment rights, played a substantial part in the

decision not to renew — even in the face of other

permissible grounds — the decision may not stand.

See Shehan v. Board, — F. 2d —— (3rd Cir. 1974)

and cases therein cited; Lusk v. Estes, 361 F. Supp.

653 (Texas, 1973).

2) A non-permissible reason did play a substantial part.

That is clear from the letter of the Superintendent

immediately following the Board’s decision, which

stated two reasons —- the one, the conversation with

the radio station clearly protected by the First Amend-

13a

ment. A court may not engage in any limitation of

First Amendment fights based on “tact” — that is

not to say that the tactfulness is irrelevant to other

issues in this case.

3) The plaintiff is entitled to a reinstatement with

back pay and, upon acceptance of reinstatement at

the earliest permissible time, will be entitled to tenure

on the same basis as if he had been employed by

the defendant Board during the interim. There are

some problems connected with this by virtue of the

plaintiff's present contract and those problems will

be left to the parties to work out in the first instance.

4) It seems settled enough that the remedy, if any, in

addition to reinstatement and back pay (vs. the Board)

is left to the Court to fashion. The only guideline

seems to be “suitability” in the particular case. This

is true whether this case be regarded as a 1983 one or a

1331.

5) There should be an award against the Board as such

for attorney's fees in the amount found reasonable —

$6,343.16 — this for the reason that the public has an

interest in having its state · related institutions act in

compliance wih the Federal Constitution and, in a case

such as this, plaintiff's counsel is in effect a private

Attorney General. See Stolberg v. Board, 274 F. 2d

485 (2nd Cir. 1973); Donahue v. Staunton, 471 F.

2d 475, 482 (7th Cir. 1972) ; Newman v. Piggie Park,

390 U. S. 400 (1968). This should be without ref-

1 The awarding of attorney s fees in § 1983 actions rests in the sound

discretion of the district court judge. Hill v. Franklin County Board

Education, F, 2d 583 6th Cir. 1968).

— i , federal courts have a duty

fff

abe

1

ii

6)

7)

8)

9)

14a

erence to any payments to plaintiff's counsel from

private sources, and without deduction.

This is not a case for punitive damage. The Board

acted here in a rather untrod field (several causes, one

impermissible). This Court, while concluding as it

has, recognizes a great deal of doubt and may be

wrong. In such a situation it would be inequitable to

award “punitive” damage.

The Board members, as individuals, are dismissed.

There will be no damage award against them by this

Court. The same is true of the Superintendent. Each

was acting as a State officer in a field necessarily in-

volving the broadest discretionary functions. As point-

ed out above, the State law contains no guidelines to

govern a board or superintendent in solving the prob-

lem of whether tenure should or should not be ten-

dered a given teacher. Any court should be careful in

constituting itself a judge of “cause” in such a field —

mainly because the expertise in that field rests with

the school authorities. The law recognizes a con-

ditional privilege” in such matters and each member

of the Board and the Superintendent enjoyed it. See

Safeguard v. Miller, 472 F. 2d 732 (3rd Cir. 1973) ;

Lasher v. Shafer, 460 F. 2d 343 (3rd Cir. 1972). This

conditional privilege — or, if one would prefer, gov-

ernmental immunity — protects from claims for at-

torney’s fees, damages and punitive damages, at least

in cases not involving flagrancy. This is far from a

flagrant case.

Costs are to be assessed against the defendant Board.

This Court has not stated any conclusion on the

possible Monroe-Kenosha problem in this case since

it seems that the case is properly here as a § 1331

10)

15a

case, as well as a § 1983 one. Somewhat similarly,

no conclusions relative to a possible Eleventh Amend-

ment problem (see Jordan v. Gilligan, — F. 2d ——

(6th Cir. 1974)) are stated since the parties seem to

concede that O.R.C. § 3313.17 (the Board of each Dis-

trict shall be a body politic and corporate, and, as

such, capable of suing and being sued, etc.) provides

the necessary waiver.

A decree and judgment consistent herewith may be

prepared and settled and presented.

/s/ TIMOTHY S. HOGAN

United States District Judg.

16a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 8044

FRED DOYLE,

1965 Connecticut Avenue, Cincinnati, Ohio,

Plaintiff,

v.

MT. HEALTHY CITY SCHOOL DISTRICT BOARD

OF EDUCATION, REX RALPH, Individually and as

Superintendent, WILLIAM C. LITTMEIER; WIL-

LIAM M. MORRIS; MRS. MARCIA HAUPP and

MRS. VIVIAN CLARK,

Defendants.

JUDGMENT ENTRY

(Filed October 11, 1974)

This action came on for trial before the Court, the Hon-

orable Timothy J. Hogan, (sic) United States District Judge,

presiding, the issues having been duly tried to the Court

and the Court having entered its Findings and Conclu-

sions on September 9, 1974:

IT IS ORDERED, ADJ UDGED AND DECREED that

judgment is rendered in favor of Plaintiff against the De-

fendant, Mt. Healthy School Board of Education and it is

ordered to reinstate Plaintiff to employment and to grant

him a continuing contract as a teacher; that the Mt. Healhy

City School District Board of Education pay to Plaintiff the

17a

sum of $5,158.00 as damages and the additional sum of

$6,343.16 as attorney fees.

Judgment is hereby and herewith rendered in favor of

Defendants Rex Ralph, William C. Littmeier, Charles

Muller, William M. Morris, Marcia Haupp and Vivian

Clark, and against the Plaintiff as to any and all claims as-

serted by the Plaintiff against these said Defendants.

Costs are to be assessed against the Defendant, Mt.

Healthy City School District Board of Education.

/s/ TIMOTHY S. HOGAN

U. S. District Judge

APPROVED:

/s/ JONAS B. KATZ

Jonas B. Katz and Anthony P.

Sgambati II

Attorneys for Plaintiff

/s/ JOHN C. BURKHOLDER

John C. Burkholder

Attorney for Board of Education

and Individual Board Members

/s/ JAMES L. O'CONNELL

James L. O'Connell

Attorney for Rex Ralph

18a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 75-1382

FRED DOYLE,

Plaintiff-Appellee,

V.

MT. HEALTHY CITY SCHOOL DISTRICT

BOARD OF EDUCATION,

Defendant-Appellant.

ORDER

(Filed December 10, 1975)

Before: WEICK, PECK, MILLER, Circuit Judges.

This appeal was perfected from a judgment of the dis-

trict court ordering plaintiff-appellee reinstated in his po-

sition under a teaching employment contract and awarding

compensatory damages and attorneys fees. Being fully ad-

vised in the premises, the Court concludes that substan-

tial evidence in the record supports the finding of the

district court to the effect that appellant's action in refusing

to renew appellee’s contract was motivated at least in part

by his action in informing a local radio station of an “ap-

propriate dress code” suggested for teachers, and that

the district court did not err in concluding that the re-

fusal to renew the contract was based on a constitutionally

impermissible reason. It is further determined that the

compensatory damages awarded to appellee were properly

19a

computed but that the intervening decision in Alyeska

v. Wilderness Society, —— U.S. —, 95 S. Ct. 1612 (1975),

renders the allowance of attorneys fees inappropriate. Ac-

cordingly,

IT IS ORDERED that to the extent the judgment of

the district court ordered the reinstatement of the plain-

tiff-appellee and the award to him of compensatory dam-

ages, it be and hereby is affirmed; it is further ORDERED,

however, that the award of attorneys fees be and it hereby

is vacated and set aside.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN

Clerk

20a

STATUTES

OHIO REVISED CODE

2743.01 Definitions

As used in Chapter 2743. of the Revised Code:

(A) State“ means the state of Ohio, including, without

limitation, its departments, boards, offices, commissions,

agencies, institutions, and other instrumentalities. It does

not include political subdivisions.

(B) Political subdivisions” means municipal corpo-

rations, townships, villages, counties, school districts, and

all other bodies corporate and politic responsible for gov-

ernmenial activities only in geographic areas smaller than

that of the state to which the sovereign immunity of the

state attaches.

* = *

2743.02 Waiver of state’s immunity; claims reduced by

collateral recovery

(A) The state hereby waives its immunity from liabili-

ty and consents to be sued, and have its liability determined,

in the court of claims in this chapter in accordance with

the same rules of law applicable to suits between private

parties, subject to the limitations set forth in this chapter.

To the extent that the state has previously consented to

be sued, this chapter has no applicability.

(B) Awards against the state shall be reduced by the

aggregate of insurance proceeds, disability award, or other

collateral recovery by the claimant.

3313.17 (4834). Corporate powers of the board.

The board of education of each school district shall be

a body politic and corporate, and, as such, capable of

*

7

w~

21a

suing and being sued, contracting and being contracted

with, acquiring, holding, possessing, and disposing of real

and personal property, and taking and holding in trust for

the use and benefit of such district, any grant or devise

of land and any donation or bequest of money or other

personal property.

« * *

33 13.203 Liability insurance for board of education

members

The board of education of any school district may

purchase from an insurance company licensed to do busi-

ness in this state, a policy or policies of insurance insur-

ing members of boards of education against liability on

account of damages or injury to persons and property re-

suiting from any act or omission of such member in his

official capacity as a member of the board of education

or resulting solely out of his membership thereon. When-

ever the board considers it necessary to procure such in-

surance, it shall adopt a resolution setting forth the amount

of the insurance to be purchased, the necessity thereof,

and a statement of the estimated premium as quoted in

writing by not less than two insurance companies if more

than one company offers such insurance for sale to the

board. Upon the adoption of such resolution, the board

may purchase insurance from the insurance company sub-

mitting the lowest and best quotation. The premiums for

such insurance shall be paid out of the general fund.

$319.11 Continuing service status and contract; limited

contract; failure of board or superintendent to act.

Teachers eligible for continuing service status in any

school district shall be those teachers qualified as to certi-

fication, who within the last five years have taught for

22a

at least three years in the district, and those teachers who,

having attained continuing contract status elsewhere, have

served two years in the district, but the board of education,

upon the recommendation of the superintendent of schools,

may at the time of employment or at any time within such

two-year period, declare any of the latter teachers eligible.

Upon the recommendation of the superintendent that a

teacher eligible for continuing service status be re-em-

ployed, a continuing contract shall be entered into be-

tween the board and such teacher unless the board by a

three-fourths vote of its full membership rejects the recom-

mendation of the superintendent. The superintendent may

recommend re-employment of such teacher, if continuing

service status has not previously been attained elsewhere,

under a limited contract for not to exceed two years, pro-

vided that written notice of the intention to make such

recommendaion has been given to the teacher with reasons

directed at the professional improvement of the teacher on

or before the thirtieth day of April, and provided that

written notice from the board of education of its action

on the superintendent's recommendation has been given

to the teacher on or before the thirtieth day of April, but

upon subsequent reemployment only a continuing contract

may be entered into. If the board of education does not

give such teacher written notice of its action on the super-

intendent's recommendation of a limited contract for not

to exceed two years before the thirtieth day of April, such

teacher is deemed reemployed under a continuing contract

at the same salary plus any increment provided by the salary

schedule. Such teacher is presumed to have accepted em-

ployment under such continuing contract unless he notifies

the board in writing to the contrary on or before the first

day of June, and a continuing contract shall be executed

accordingly.

23a

A teacher eligible for continuing contract status em-

ployed under an additional limited contract for not to

exceed two years pursuant to written notice from the

superintendent of his intention to make such recommenda-

tion, is, at the expiration of such limited contract, deemed

reemployed under a continuing contract at the same salary

plus any increment granted by the salary schedule, unless

the employing board, acting on the superintendent’s recom-

mendation as to whether or not the teacher should be re-

employed, gives such teacher written notice of its inten-

tion not to reemploy him on or before the thirtieth day

of April. Such teacher is presumed to have accepted em-

ployment under such continuing contract unless he notifies

the board in writing to the contrary on or before the first

day of June, and a continuing contract shall be executed

accordingly.

A limited contract may be entered into by each board

with each teacher who has not been in the employ of the

board for at last three years and shall be entered into, re-

gardless of length of previous employment, with each

teacher employed by the board who holds a provisional or

temporary certificate.

Any teacher employed under a limited contract, and

not eligible to be considered for a continuing contract,

is, at the expiration of such limited contract, deemed

reemployed under the provisions of this section at the same

salary plus any increment previded by the salary schedule

unless the employing board, acting on the superintendent's

recommendation as to whether or not the teacher should be

reemployed, gives such teacher written notice of its in-

tention not to reemploy him on or before the thirtieth day

of April. Such teacher is presumed to have accepted such

employment unless he notifies the board in writing to

the contrary on or before the first day of June, and a

24a

written contract for the succeeding school year shall be

executed accordingly. The failure of the parties to exe-

cute a written contract shall not void the automatic re-

employment of such teacher.

The failure of a superintendent of schools to make a

recommendation to the board of education under any of

the conditions set forth in this section, or the failure

of the board of education to give such teacher a written

notice pursuant to this section shall not prejudice or pre-

vent a teacher from being deemed reemployed under

either a limited or continuing contract as the case may

be under the provisions of this section. (129 v 1206. Eff.

10-17-61. 128 v 123)

1