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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2198%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 274

## Text

¢ 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:
SEND eek 0 cache A neste tiie 20a
1 20a
%%% 20a
%%% Ch dupa thaggaeeen ee 21a
11 ³˙·¹mAAÄ acene eee 21a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2198%3A1. Public record. Not legal advice.