Opposition — Kellner v. Karnes City Independent School District

TABLE OF CONTENTS

Page

I Ch deen see bods dvcweddbdle dk cécalees |

in elie Be ed eel as wails oe oe us 2

I i a a hs 2

Statutes and Rules Involved ...................000c0e5e 2

so bc onan vunedcnavscumkmemabs 2

Question No. 1 (Restated) .............. 0... cccceeee 11

Question No. 2 (Restated) ............... 0. c cee eee 11

Argument and Authorities .....................00005. 11

A. The Trial Court and the Court of

Appeals Properly and Correctly Held

That the Petitioner Had No Property

Interest in the Continued Employ-

ment With the Karnes City Indepen-

EE er 12

B. The Trial Court and the Court of

Appeals For the Fifth Circuit Properly

and Correctly Held That the Peti-

tioner Had No Liberty Interest in the

Continued Employment With the

Karnes City Independent School Dis-

EER eh Oe a ee re 18

TABLE OF CONTENTS (Continued) : TABLE OF CONTENTS (Continued)

Page Page

C. The Petitioner Failed to Exhaust Her Ue Cees Saceis eee ease tbivedes cee dees A-42

Available Administrative Remedies

Prior to Initiation of This Action ................ 24 wl Vig EE SEA Re wikeuscekh de beweseeneodvnce¥s A-44

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CE abe dS vadeccseédedutetcasédakawhoess A-36

DT -2co¢encdedetbedenesadtacensuneades A-39 a

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TABLE OF AUTHORITIES

Cases: Page

Beattie v. Roberts, 436 F. (2d) 747, 478-49

(Dat Cle. ESTE) 2c cccccccccccccccccccccccccccccces 25

Blount v. Marion County School Board, 515

F. (2d) 951, 961-62 (Sth Cir. 1975) ...............4... 17

Birdwell v. Hazelwood School Dist., 352 F.

Supp. 613, 623 (E.D. Mo. 1972) ......... 2202 e ee eee 13

Board of Regents v. Roth, 33 L. (2d) 548,

es a aheernnaie nd 14, 18, 20, 21

Calvin v. Rupp, 471 F. (2d) 1336, 1348 (8th

SPOT PTTI TTT TTP TE LT TTL 19

Chastain v. Mauldin, 32 S.W. (2d) 235, 237

(Tex. Civ. App. — Austin 1930, no writ) .............. 26

Cook v. Hudson, 365 F. Supp. 855, 861

Se ig cn cedeecaubenneedeeaccoescaes 16

Cook County College Teachers Union Local

1600 v. Byrd, 456 F. (2d) 882, 889 (7th

Cir.), cert. denied, 409 U.S. 848 (1972) ......... 12, 13, 19

Cooper v. Curry, 399 F. Supp. 372, 374-

Fe SHOE cacasccousécescocncsescecones 15, 22

County School Trustees v. Common School

Dist. No. 6, 284 S.W. 306, 307 (Tex. Civ.

App. — Eastland 1926, no writ) ..................... 26

TABLE OF AUTHORITIES (Continued)

Cases: Page

Doscher v. Seminol Common Consolidated

School Dist., 377 F. Supp. 1166, 1170

Ge BH SOD B-kiciw's Sere ae Ferree ees cece dcuaes 15

Duke v. North Texas State University, 469 F.

Ge ey GPG DUE Shc ci clase cescccsceces 24

Eisen v. Eastman, 421 F. (2d) 560, 569 (2nd

Cir. 1969): cert. denied, 47 L. Ed. (2d) 75

Oe de 25

Esteban v. Central Missouri State College, 415

©. CRG) OST, CERw Got Gee, BORD. ccc cc ccc cccces 12

Ferguson v. Thomas, 430 F. (2d) 852, 857

SP CE Gee EUs pee EReUSS EAs NRK cbecccctoees 24

Freeman v. Gould Special School Dist., 405

F. (2d) 1153, 1161 (8th Cir. 1968), cert.

Ce eS er ee

Garner v. Board of Public Works, 95 L. (3d)

ee INS 6 ah Os oo. B56 GCE Sass B60 sd cc 60 be

Gay v. Wheeler, 363 F. Supp. 764, 779

Se hls £555 dsG hs clas HSK Ses 0k 40k 4 16,

Griffin v. Lancaster, 400 F. Supp. 421, 423

EE RN ar Se oar

Hetrick v. Martin, 480 F. (2d) 705, 707-08

SR FT a SRY ian ae ne Sena

‘

TABLE OF AUTHORITIES (Continued)

Cases: Page

Hix v. Tuluso-Midway Ind. School Dist., 490

S.W. (2d) 706, 719 (Tex. Civ. App. —

Corpus Christi 1972, writ ref'd n.r.e.) ............. 17, 23

Jeffries v. Turkeyrun Consolidated School

Dist., 492 F. (2d) 3 (7th Cir. 1974) .................. 14

Jenkyns v. Board of Education, 294 F. (2d)

a Se Gs EE b's SEG HS 6 0Gs deeds Secc es 21

Kelly v. West Baton Rouge Parish School

Board, 517 F. (2d) 194, (Sth Cir. 1975) ............ 18, 21

LaBorde v. Franklin Parish School Board, 510

PGP caGadee GSU es céccoveeves 21

Lee v. Macon County Board, 43 F. (2d) 242,

ee ac ee og SEO a eee ew ct ced eeees 14

Lewis v. Spencer, 468 F. (2d) 553, 557 (Sth

PCr iveenuctuenkhsetéseawe thee 68 ob ex 16, 17

Lipp v. Board of Education, 470 F. (2d) 802,

celta hd Rabb enn bos 00's os 17,19

McCrae v. Lindale Ind. School Dist., 450 S.W.

(2d) 118, 121 (Tex. Civ. App. — Tyler

ee I es el ebs cd ewueteetsdesees 26

McCullough v. Lohn, 483 F. (2d) 34 (Sth Cir.

SE oN ee CEL Ses eUUe oeanee RENE oUb ewes co dvitses 17

VI

TABLE OF AUTHORITIES (Continued)

Cases: Page

McDowell v. State of Texas, 465 F. (2d) 1342

(Sth Cir. 1971), aff’d, en banc, 465 F. (2d)

EE ee ere Se en, 23

McEnteggart v. Cataldo, 451 F. (2d) 1109,

1111 (1st Cir. 1971), cert. denied, 33 L.

nd oe kee haeedive codweeck 20

Moore v. Knowles, 466 F. (2d) 531, 532

ee ee ee as wks wuigwid's bad 16

National Educ. Ass’n v. Lee County Board of

Public Instruction, 467 F. (2d) 447, 452

a swesesers 14

Norman v. Duval County School Board, 361

F. Supp. 1167,1175 (M.D. Fla. 1973) ................ 23

Orr v. Trinter, 444 F. (2d) 128, 135 (6th Cir.

I Ait en a ee ete eebas 19

Ortwein v. Mackey, 358 F. Supp. 705, 710

ee we ay 16, 25

Patrone v. Howland Local School Board, 472

F. (2d) 159, 160 (6th Cir. 1972) ................25.. 16

Perry v. Sindermann, 33 L. Ed. (2d) 570, 578

EY Hacdao kdb eu ee 6eeadnesuees hh oe ebb be ode 14, 16

Vil

TABLE OF AUTHORITIES (Continued)

Cases: Page

Plains Common Consolidated School Dist.

No. 1 v. Hayhurst, 120 S.W. (2d) 322

(Tex. Civ. App. — Amarillo 1938, no writ)............. 26

Robinson v. Jefferson County Board of

Education, 458 F. (2d) 1381, 1382 (Sth

Cie. S9TS)D . co ccccccseceéscoven vane 22, 23

Seitz v. Clark, 524 F. (2d) 876, 879 (9th Cir.

IGTBD. .. .occcecccccuceuccseneenuaeieenal 13

Simard v. Board of Education, 473 F. (2d)

GOB, 904 (3nd Cis. GOTED 6 ccc ddvcstuwdasee cd detecs 23

Sims v. Fox, 505 F. (2d) 857, 863 (Sth Cir.

DPE) 0. ccccccccdhsics beuees beekensneees eee 19

Skidmore v. Shamrock Ind. School Dist., 464

F. (28) 60S (Gis Gis. BOFED 2.0 cccvcideve twesicds 15,18

Springston v. King, 399 F. Supp. 985, 989

(WD. Va. 1997S)... ccscvecccdccevetesecess Ouueuen 22

Thompson v. Madison County Board of

Education, 476 F. (2d) 676, 679 (5th Cir.

DTS) . ccccccccscocuscescdunbeeeees ae 23

Van De Pate v. Boling, 379 F. Supp. 925, 929

GED. Dae. BSPSD oc cccccccocccesecsecuunseeel 12

Waliba v. New York University, 492 F. (2d)

56, FS Can8 Gis. COPED «cc coc cccccocsuneseueeenanea 13

Vill

TABLE OF AUTHORITIES (Continued)

Cases: Page

Whitner v. Davis, 410 F. (2d) 24, 29 (9th Cir.

Lue auS sabe sckcsccccccccccccces 25

Others:

se, occ encsvccnceceecce 3,8

EES 3.12.15

Texas Education Code § 11.13(a)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO.

MS. ETTA LEE KELLNER,

Petitioner,

VERSUS

KARNES CITY INDEPENDENT SCHOOL DISTRICT,

A POLITICAL SUBDIVISION OF THE STATE OF TEXAS,

ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

BRIEF OF RESPONDENTS, THE INDIVIDUAL MEMBERS

OF THE BOARD OF TRUSTEES OF THE KARNES CITY

INDEPENDENT SCHOOL DISTRICT

TO THE HONORABLE UNITED STATES SUPREME COURT:

OPINIONS BELOW

The United States Court of Appeals for the Fifth Circuit

entered a judgment on October 6, 1976 affirming the Order of

the United States Court for the Western District of Texas dated

February 11, 1976. The opinion of the United States Court for

the Western District of Texas is attached to the petition and

designated as Exhibit “A”. On or about November 24. 1976,

the Court of Appeals denied petitioner’s motion for a rehearing.

JURISDICTION

The jurisdictional requisites are adequately set forth in the

petition.

QUESTIONS PRESENTED

(1) Whether or not the Court of Appeals for the Fifth Circuit

erred in affirming the summary judgment in this case based

upon the fact that there was no genuine issue as to any material

fact and that the respondents were entitled to a judgment as a

matter of law.

(2) Whether or not the United States Court for the Western

District of Texas erred in holding that there was no genuine

issue as to any material fact and that these respondents were

entitled to a judgment as a matter of law.

STATUTES AND RULES INVOLVED

Rule 56 of the Federal Rules of Civil Procedure, which is

contained in the appendix to respondents’ brief in opposition.

STATEMENT OF THE CASE

In an effort to limit the length of this brief and for purposes

of clarification, the respondents, Mr. James McClane, Mr.

Marvin Witte, Mr. Alois Linhart, Mr. Hilmer Wagener and

Mr. Kenneth Matthews will be referred to herein as the Board

Members. The petitioner will be referred to as either the peti-

tioner or the plaintiff.

The petitioner asserted this action based upon 28 U.S.C.

§ 1332 wherein she attempted to allege causes of action arising

under the First and Fourteenth Amendments to the United

States Constitution, and 42 U.S.C. § 1983. The claims arose

out of the dismissal of the petitioner from her position as a

school teacher with the Karnes City Independent School

District. She brought suit against the defendant school district,

the Superintendent of Schools for the Karnes City Independent

School District, Mr. M. E. Asman, the Principal of the elemen-

tary school, Mr. D. R. Luthringer, and the individual members

of the Board of Trustees of the Karnes City Independent School

District.

The facts, as indicated by the record on appeal, and as

viewed in a light most favorable to the plaintiff, indicate that

she was a school teacher employed by the District on a year-to-

year basis (App. “L”’). Her contract with the District for the

year 1974-75 stated as follows:

“This contract will be effective for one year(s) as

long as you do efficient work and retain a good

moral character.” (App. ““L”).

The 1974-75 contract was accepted by the plaintiff (App.

“M’’), reflecting that she had knowledge of the provisions in

the contract. It is undisputed that Ms. Kellner was familiar

with the contents of her teaching contract.

Each school teacher annually employed by the Karnes City

Independent School District is subjected each year to an evalua-

tion in order to determine whether or not such employee is

“doing efficient work” pursuant to the standards contained in

the particular teaching contract. In the year of 1973-74, the

petitioner never rated “superior” on any category evaluated,

and merely rated “acceptable” on most categories (App. “J”’),

which was deemed by the School District to not constitute a

good evaluation and was “among the lowest of any faculty

member retained on the staff’ (App. “J”). Her excuse for

these infirmities was that “room No. 9 is not adiquat (sic) for

teaching Art’’. (App. “J”’).

The petitioner was again evaluated by the District in 1974-

75, and a serious decline was indicated since she needed im-

provement in six categories, and scored “ccommendable”’ only

in areas such as economic use of school supplies and dress and

grooming (App. “K”’). Her excuse for this deteriorated per-

formance in the classroom was solely that her grade book was a

subject of “faulty” construction (App. “K’’).

The petitioner clearly recognized her need for improvement

in areas such as good judgment, effective use of class time,

effective class management, maintenance of a school room

conducive to the learning process and staff relations, and

nevertheless took no action to remedy these problem areas.

She even admitted that she was not accurate and prompt in

her attention to records and reports, although she attributed

this to the “faulty construction” of the grade book (App. “K”’).

As a response to the poor and adequate showing by Ms.

Kellner, superintendent Asman authored a letter dated March

13, 1975 in which it was stated as follows:

“In 1974-75, your yearly evaluation indicated that

out of 37 items you rated commendable on 12 and

acceptable on 25. This was among the lowest rating

of any faculty member retained on the staff. This

year your rating on the same 37 items indicates 5

commendable items, 26 acceptable items and 6

needed improvement items, quite a deterioration

compared with the previous evaluation which was not

good to begin with.”’ (Emphasis added) (App. “I’’).

In the Board meeting of the same date, the reemployment of

Ms. Kellner was not recommended on the grounds that (1) she

used poor judgment, (2) poorly managed her classes, (3) did

not relate to other staff members, and (4) her records and

reports were inaccurate (App. “D”’, “E”, “F”, “G” and “H”).

These were some of the very same matters that had been

presented to the petitioner as needing improvement on January

10, 1975 pursuant to the evaluation for the 1974-75 school

year (App. “K’’), and of which she had notice as of that date,

as is reflected by her signature on said document (App. “K”’).

The Board determined that it would hold the question of

non-renewal of the contract in abeyance until a later date and

Ms. Kellner requested and received a hearing on the issues on

April 7, 1975. At said hearing she was represented by counsel

and was allowed to present witnesses in her behalf and at that

time she was informed by the Board that it would give the

matter careful consideration and would render a decision on

the same during the May, 1975 meeting of the Board. In addi-

tion, Ms. Kellner was invited to further discuss the matters with

Messrs. Asman and Luthringer, which she declined to do.

On or about May 12, 1975, the Board again met, and in

emphasizing that consideration was being made regarding the

benefit and welfare of the children of the school as a whole,

concluded that the contract of Ms. Kellner would not be

renewed for the forthcoming school year. On the same occasion

it was determined that the teaching contract of one other

teacher formerly employed by the Karnes City Independent

School District would not be renewed for the forth-coming

year. Although two of the Board members, Messrs. Witte and

Linhart, abstained from this vote, they were named as defen-

dants in this action by the petitioner.

It is undisputed that the Board Members were acting in the

performance of their official duties as members of the School

Board, and determined not to renew the contract of the peti-

tioner in good faith, without any arbitrary action on behalf of

any individual (App. “D”, “E”, “F”, “G”, and “H”’). Each

Board member believed that such non-renewal would be in the

best interest of the Karnes City Independent School District

and the students presently enrolled and to be enrolled in the

future, and there was not present any improper motivation or

malicious action by any of the Board members (App. “D”’, “E”’,

“-”, “G”, and “D”).

Mr. James McClane, as President of the Board of Trustees of

the Karnes City Independent School District, sent Ms. Kellner

a letter on or about July 25, 1975, notifying her once again of

the reasons for the non-renewal of her teaching contract for the

1975-76 school year, which were stated as follows:

(1) The plaintiff, Mrs. Etta Lee Kellner, exercised

poor judgment in her capacity as a teacher in the

following respects:

(a) She exhibited hostility toward students.

(b) She used unnecessary force in the administra-

tion of corporal punishment.

(c) She violated administrative directives by

frequently leaving the school campus during her

conference period.

(2) She exhibited poor classroom management in the

following respects:

(a) She maintained poor classroom discipline.

(b) She failed to prepare her lesson plans either for

herself or substitute teachers.

(c) She violated administrative directives by leaving

the classroom unsupervised and by leaving the class

room frequently during normal class time.

(3) She failed to maintain her grade book properly

and to record the grades on the report cards accurate-

ly.

(4) She failed to perform her teaching duties in a

manner which would meet the accepted standard

conduct for the profession as recognized and applied

in similarly situated school districts throughout the

State of Texas. (App. ““B”’).

In this correspondence Ms. Kellner was offered a further

hearing concerning the decision of the District to not offer

her a contract for the 1975-76 school year, and the names of

certain individuals that would probably testify at such hearing

were listed in said correspondence (App. “B”). Ms. Kellner

was requested to advise the Board of Trustees if she desired

such a hearing within fifteen (15) days from receipt of said

letter (App. “B”). The petitioner, however, failed to so respond

and instead filed this action on August 4, 1975, and has at no

time responded to the generous offer of the School Board and

attempted to exhaust her available administrative remedies.

The contract of the petitioner was not renewed by the

Karnes City Independent School District for good and sufficient

cause and she received notice of such grounds and was given

the opportunity to present evidence prior to the determination

to not renew the contract. In addition, she was allowed every

opportunity to be fully advised of the good cause and justifiable

grounds upon which the decision was predicated.

The defendant individual members of the Board of Trustees

moved to dismiss this action on the grounds that they were

not subject to individual liability regarding the petitioner's

claims for damages, that the petitioner had failed to exhaust

her available administrative remedies, that she had no pro-

tectable property interest in the future employment with the

District and was not entitled to due process; that she had no

liberty interest ir continued employment with the School

District and had thus not stated a claim upon which relief

could be granted, and because she had failed to allege the

jurisdictional facts necessary to confer jurisdiction in the

Federal District Court pursuant to 28 U.S.C. 8 1332.

On or about November 14, 1975, the United States Court

for the Western District of Texas converted the motion to

dismiss as a motion for summary judgment, and ordered all

parties to submit to the Court any evidence they desired the

Court to consider in ruling upon the defendant’s motion for

summary judgment (App. “C”’), which all litigants did subse-

quent to said Order. At no time did the petitioner assert that

there was any genuine issue as to any material fact involved

in this litigation, or that the respondents were not entitled to

a judgment as a matter of law. Petitioner did submit evidence

in opposition to the respondent’s motion for a summary judg-

ment, and the Court reviewed and carefully considered the

briefs, exhibits and pleadings, together with a complete record

and file of this action, and concluded that the motion for

summary judgment was meritorious and should be granted.

(App. “M’’). The District Court correctly found that the peti-

tioner conceded that the contract she accepted clearly demon-

strated that “she had no formal tenure such as would entitle

her to continued employment in the absence of sufficient

cause” (App. “M’’), and further she had failed to allege that

she had ever been denied a hearing informing her of the grounds

for non-retention, or that she even desired such a hearing

(App. “M”’). The Trial Court concluded that the petitioner had

demanded immediate reinstatement, relief which the Court

could not grant, and that thus the petitioner had failed to state

a claim upon which relief could be granted (App. “M”’). The

Court further noted that petitioner had “failed to accept an

offer of the Board for a further hearing with regard to the non-

renewal of her contract” (App. “M’’). It was also held that the

only evidence presented by petitioner regarding the denial of .

an alleged liberty interest were some of the reasons set forth

by the School District for their decision to not renew the

petitioner’s contract, to-wit: “poor judgment” and “poor class

management”, which the Court held to be “no more injurious

to the plaintiff's reputation than the fact of non-renewal itself”

and which constituted “direct indications that the Board’s

decision not to renew the contract was based on good cause

and not malevolence or caprice” (App. “M’’). The Court con-

cluded as follows:

“The veracity of the Board’s reasoning has not been

questioned by the plaintiff or in any way brought

into issue in this case and on the face of the allega-

tions alone, the Court finds that good cause does exist

for not renewing the plaintiff's contract”. (App.

“M”’).

It was held that the petitioner had alleged no facts or causes of

action under the First Amendment, and the Court granted

judgment in favor of these respondents. Petitioner initiated an

appeal to the Court of Appeals for the Fifth Circuit, and said

appellate court affirmed the summary judgment in favor of

these respondents on or about October 6, 1976, and thereafter

denied petitioner’s motion for rehearing on or about November

24, 1976.

Of the “facts” set forth in the petitioner’s petition for a

writ of certiorari to this Court, the only fact that is supported

by the record on appeal is that the petitioner was employed by

the Karnes City Independent School District. The other “‘facts’’.

such as the petitioner’s trips to Thailand, Japanese Tea Parties,

headaches, and the wasting of Elmer’s Glue are entirely dehors

of the record on appeal. In fact, the entire contents of pages

3, 4, 5,6 and 7 of the petitioner’s petition for a writ of certiora-

ri before this Court constitute self-serving statements, opinions

and hearsay that were not before the Trial Court although the

petitioner was allowed every opportunity to submit any evidence

in her possession for consideration by the Trial Court. In regard

to the unverified statements set forth in the Board hearing of

May 12, 1975, this information was specifically excluded by the

Trial Court when the petitioner attempted to submit the same to

the Court subsequent to the entry of a summary judgment on

behalf of the respondents. Clearly, the petitioner had every op-

portunity to submit such evidence to the Trial Court and failed

to do so and hence waived the right to submit such evidence.

The factual history of the instant litigation leads to the

singular conclusion that teachers may be re-elected by the

Karnes City Independent School District, and that some

teachers are not retained; that the petitioner had no tenure in

continued employment with the school district and had no

property or liberty interest to be protected in the continued

employment with the District, although she received the full

benefits of due process though disinterested in the same. She

further had no cause of action or claim against the individual

members of the Board of Trustees of the Karnes City Indepen-

dent School District. The judgment entered by the Trial Court

on February 11, 1976 and which was affirmed by the United

States Court of Appeals for the Fifth Circuit on or about

October 6, 1976 was in all things correct and proper, and it is

respectfully submitted that this Court should affirm said

judgment.

-10-

QUESTION NO. 1 (RESTATED)

Whether or not the Court of Appeals for the Fifth Circuit

erred in affirming the summary judgment in this case based

upon the fact that there was no genuine issue as to any material

fact and that the respondents were entitled to a judgment as a

matter of law.

QUESTION NO. 2 (RESTATED)

Whether or not the United States Court for the Western

District of Texas erred in holding that there was no genuine

issue as to any material fact and that these respondents were

entitled to a judgment as a matter of law.

ARGUMENT AND AUTHORITIES

(Argument on the above questions is hereby consolidated for

purposes of argument since the questions are germane to one

another and separate argument on each would unnecessarily

lengthen this opposition brief.)

Since the only issue presented by the petitioner in her

application for a writ of certiorari is whether or not she has

stated a prima facie case of the denial of alleged “‘property”’

and “liberty” interests, respondents’ arguments in support of

their position that they are not individually liable in regard to

the decision to not renew the contract of the petitioner will be

dispensed with for purposes of this brief.

A. THE TRIAL COURT AND THE COURT OF APPEALS

PROPERLY AND CORRECTLY HELD THAT THE

PETITIONER HAD NO PROPERTY INTEREST IN THE

CONTINUED EMPLOYMENT WITH THE KARNES

CITY INDEPENDENT SCHOOL DISTRICT.

The petitioner alleges that she had a protectable property

interest in her employment with the respondent school district

and that the decision to not renew her one-year contract was

violative of procedural due process according to her allegations

that she was not afforded a notice and a hearing setting forth

the reasons for non-renewal. Since the petitioner was a non-

tenured teacher with no expectancy of continued employment

with the District, she was of course not entitled to notice and

a hearing in regard to any determination not to renew her

contract. Further, the petitioner failed to sustain her burden of

establishing a prima facie case of discrimination pursuant to

42 U.S.C. 8 1983. Van De Pate v. Boling, 379 F. Supp. 925,

929 (E.D. Tenn. 1974). The record on appeal clearly indicates

that Ms. Kellner was not a tenured employee of the Karnes

City Independent School District, as is clearly reflected by the

contract between her and the District, and the non-retention of

other teachers by the School District. Nevertheless, she was

afforded two hearings regarding the non-renewal of her teaching

contract and was informed of the reasons for such non-renewal,

and she was also offered an additional hearing which she de-

clined to accept and was given further notice regarding the

reasons for the decision to not renew her contract.

It is well established that the school district has considerable

latitude and discretion in its formulation of rules and regula-

tions governing the school policies, Esteban v. Central Missouri

State College, 415 F. 2d 1077, 1089 (8th Cir. 1969), and that

a school administration may validly decline to renew the

contract of a teacher where the decision is based wholly upon

the performance of the teacher. Cook County College Teachers

-12-

Union Local 1600 v. Byrd, 456 F. (2d) 882, 889 (7th Cir.).

cert. denied, 409 U.S. 848 (1972). As stated by the Court of

Appeals for the Eighth Circuit,

“School boards are representatives of the people and

should have wide latitude and discretion in the

operation of a school district, including employment

and rehiring practices. Local autonomy must be

maintained to allow continued democratic control

over the education as a primary state function .. .”

Freeman v. Gould Special School Dist., 405 F. (2d) 1153. 1161

(8th Cir. 1968), cert. denied, 396 U.S. 843 (1969). The respon-

dents in this litigation have had full authority to establish the

hiring and employment practices of the school district, and it

is obvious, pursuant to the clear and unambiguous language of

the contractual agreement entered into by the district and

the petitioner for the school year of 1974-75, that there was no

tenure or expectancy for reemployment beyond that period,

and unequivocally no more than a unilateral or subjective

expectation on the part of the petitioner for continued employ-

ment with the school district. The terms of the contract be-

tween the petitioner and the district expressly state as follows:

“(T)his contract will be effective for one (1) year(s)

as long as you do efficient work and retain a good

moral character.”

The authorities are in accord that the required form that any

procedural due process is to take in any given case must be

accommodated to the facts of each case, Birdwell v. Hazelwood

School Dist., 352 F. Supp. 613, 623 (E.D. Mo. 1972), and that

a non-tenured teacher only has the right to due process if he

can show a deprivation of a liberty or a property. Seitz v.

Clark, 524 F. (2c) 876, 879 (9th Cir. 1975); Waliba v. New

York University, 492 F . (2d) 96, 98 (2nd Cir. 1974).

-13-

It is clear that the petitioner did not have a property interest

in the continued employment with the Karnes City Indepen-

dent School District. The contractual agreement between the

petitioner and the district dated March 18, 1974, clearly put

her on notice of this fact, and, as stated by the United States

Supreme Court, where a non-tenured teacher is employed on

a one-year contract, and is not reemployed the succeeding

year, he has an abstract concern in being rehired, but he has no

property interest to require a hearing upon declination of the

authorities to renew his contract of employment. Board of

Regents v. Roth, 33 L. (2d) 548, 561 (1972).

Further, the United States Supreme Court has also enunci-

ated the standard that the United States Constitution does not

require an opportunity for a hearing before the non-renewal of

a non-tenured state teacher’s contract, Perry v. Sindermann,

33 L. Ed. (2d) 570, 578 (1972). The Court further held in Perry

that a mere subjective expectancy is not an interest in property

protected by procedural due process. Jd. at 580. ‘It is the

prevailing standard that a teacher may be discharged for un-

specified reasons without notice or hearing where there is no

tenure or an objective expectancy of reemployment, National

Educ. Ass'n v. Lee County Board of Public Instruction, 467 F.

(2d) 447, 452 (Sth Cir. 1972), and thus the petitioner herein was

entitled to neither notice nor a hearing in connection with the

expiration of her contract. Jeffries v. Turkeyrun Consolidated

School Dist., 492 F. (2d) 3 (7th Cir. 1974); Lee v. Macon Coun-

ty Board, 43 F. (2d) 242, 243 (Sth Cir. 1973).

In a case where the plaintiff alleged a deprivation of her

property interest and the teaching contract of the plaintiff was

to be renewed depending upon his compliance with school

policies and regulations, and the record on appeal was silent

as to any school policy, regulation or promise on the part of

the school officials that the teacher would as “a matter of

course” be accepted for future employment, it was held that

-14-

the teacher had no property right in his employment. Cooper

v. Curry, 399 F. Supp. 372, 374 (S.D. Miss. 1975).

The Court in Skidmore v. Shamrock Ind. School Dist., 464

F. (2d) 605 (5th Cir. 1972) encountered a case in which a teacher

asserted a cause of action alleging abridgement of her profes-

sional and substantive due process rights in the non-renewal of

her employment. In this case, the plaintiff had been employed

as a classroom instructor by the defendant school district for

twenty-two consecutive one-year terms, and she was not offered

a renewal of her contract on the 23rd year. The Court of

Appeals for the Fifth Circuit concluded that the plaintiff was a

non-tenured teacher and that she had no more than an “‘ex-

pectancy” that her contract would be renewed. Jd. at 606. In

the Skidmore case, the Court placed considerable emphasis on

the tenure policies of the school district, and concluded that

because the plaintiff had no tenure and no more than a mere

expectancy of re-employment, the decision not to rehire her

without notice and a hearing did not deprive her of due process.

Id. at 606.

In another case where the plaintiff teacher had been con-

tinuously employed by the school district for twenty consecu-

tive years on one-year contracts, the United States Court for

the Northern District of Texas concluded that the mere subjec-

tive expectancy of re-employment is insufficient to require

that a hearing meeting due process requirements be afforded

the teacher prior to the termination of her employment.

Doscher v. Seminol Common Consolidated School Dist., 377 F.

Supp. 1166, 1170 (N.D. Tex. 1974). In Doscher the plaintiff

had not received a hearing in which he was advised of any

grounds for her dismissal, but the Court concluded that she had

no property interest or liberty interest so as to entitle her to

due process and that she had no tenure and no right to renewal

of her contract, even though she had alleged causes of action

falling from 42 U.S.C. § 1983, as well as the First and Four-

teenth Amendments, as in the present action. In Moore v.

Knowles, 466 F. (2d) 531, 532 (Sth Cir. 1972), the Court faced

an assertion by a teacher that while he lacked tenure, he had the

expectancy of tenure. The Court, however, determined that a

mere expectancy of employment does not necessitate a hearing,

Id. at 532, and concluded that due process requirements are not

violated by the removal of a teacher from the classroom with-

out a hearing. Jd. at 532.

The Courts have often reiterated the standard that a mere

“subjective” expectancy, Cook v. Hudson, 365 F. Supp. 855,

861 (N.D. Miss. 1973), or a “unilateral” expectancy, Gay v.

Wheeler, 363 F. Supp. 764, 779 (S.D. Tex. 1973), is an insuffi-

cient ground for there to be a notice and a hearing prior to

non-renewal of the teacher’s contract, and the mere employ-

ment by the district of the teacher for a number of years

creates no more than a “subjective” expectancy of re-employ-

ment. Further, it has been held that the mere employment of

one-year contracts over multi-year periods is insufficient to

create an expectancy of continued employment, Patrone v.

Howland Local School Board, 472 F. (2d) 159, 160 (6th Cir.

1972), and that there must be more than a unilateral expecta-

tion. Ortwein v. Mackey, 358 F. Supp. 705, 710 (M.D. Fila.

1970). As stated by the Court of Appeals for the Fifth Circuit

in Sindermann v. Perry, supra, a contrary result will legally

deny to the school the freedom to employ personnel under

annual contracts which are unfettered by any re-employment

obligations. Id. at 944. The Court concluded that if a contrary

result was promulgated “every teacher would thus be granted

substantial tenure rights by Court edict.”’ Id. at 944.

The Court concluded that the Courts do not make contracts

for teachers, Sindermann, supra at page 944, and reiterated

the rule that a teacher without tenure or an expectancy of

re-employment may have his contract terminated upon any

reason or no reason at all. Jd. at 944; Lewis v. Spencer, 468 F.

-16-

(2d) 553, 557 (Sth Cir. 1972). In addition, the courts have

determined that the fact that a teacher has been rehired each

year for a number of years does not constitute any evidence

that a school district impliedly contracted with the teacher to

renew the contract annually, Hix v. Tuluso-Midway Ind. School

Dist., 490 S.W. (2d) 706, 719 (Tex. Civ. App. — Corpus Christi

1972, writ ref'd n.r.e.).

The concept of property as related to public employment

is usually defined in terms of a legitimate claim of entitlement

to a job, Lipp v. Board of Education, 470 F. (2d) 802, 805

(7th Cir. 1972), and procedural due process does not apply to

cases of non-employment of teachers unless a teacher has a

property interest on a constitutionally cognizable liberty.

McCullough v. Lohn, 483 F. (2d) 34 (Sth Cir. 1973).

In this case there was no defect in procedural or substantive

due process; if, however, there was any question in this regard,

the same was cured by the offer of a hearing and a notice of

the charges conveyed to Ms. Kellner by the Superintendent of

Schools by letter dated July 25, 1975. Blount v. Marion County

School Board, 515 F. (2d) 951, 961 - 62 (Sth Cir. 1975). The

record on appeal unequivocally demonstrates that the petitioner

was a non-tenured teacher with, at the most, a unilateral ex-

pectancy of re-employment with the School District. She was

placed on notice that the contractual agreement was for one (1)

year only and it was not implied by the contractual agreement

that the school district would rehire her on each succeeding

year. The mere use of the one-year contract indicates the policy

of the school district, and it cannot therefore be said that the

petitioner had a property interest in continued employment

so as to entitle her to a notice and a hearing prior to the deci-

sion not to renew her contract. Petitioner merely alleged a

mere expectancy of the continued employment generated by

previous periods of employment which is held to constitute a

failure to state a claim upon which relief can be granted.

-17-

Skidmore, supra. It is abundantly clear that the petitioner

failed to state a claim or a cause of action upon which relief

could be granted 2nd that the District Court properly and

correctly determined that the petitioner had no property

interest in continue | employment with the School District, and

that there was no genuine issue as to any material fact and that

these respondents were entitled to a judgment as a matter of

law.

B. THE TRIAL COURT AND THE COURT OF APPEALS

FOR THE FIFTH CIRCUIT PROPERLY AND COR-

RECTLY HELD THAT THE PETITIONER HAD NO

LIBERTY INTEREST IN THE CONTINUED EMPLOY-

MENT WITH THE KARNES CITY INDEPENDENT

SCHOOL DISTRICT.

Petitioner contended that she had acquired a liberty interest

to her professional reputation protectable under the First and

Fourteenth Amendments to the United States Constitution,

and that she was denied such interest in violation of her rights

and constitutionally impermissible reasons. Petitioner did not

acquire a liberty interest in her continued employment with

the Karnes City Independent School District, and, arguendo,

even if such liberty interest did flow to the benefit of the

petitioner, there has been no abridgement thereof by these

respondents.

The United States Supreme Court has concluded that the

concept of due process is extended too far when it is suggested

that a person is deprived of a “liberty” when he is simply not

rehired for one job, but remains as free as before to seek

another position in other employment. Board of, Regents v.

Roth, 38 L. Ed. (2d) 548, 560 (1972). In Kelly v. West Baton

Rouge Parish School Board, 517 F. (2d) 194, (5th Cir. 1975),

the Court of Appeals for the Fifth Circuit determined as follows:

-18-

“The mere fact that non-retention by a school system

might make a teacher less attractive to other school

systems does not constitute deprivation of liberty so

as to entitle the teacher to a pre-termination hearing.”

Id. at 199.

Additionally , it has been held that not every negative effect on

one’s attractiveness to future employers violates due process if

it results without a hearing. Lipp v. Board of Education, 470 F.

(2d) 808, 815 (7th Cir. 1972). Moreover, even if non-retention

by a school district makes a teacher less desirable to other

school districts, this does not constitute a deprivation of her

liberty so as to entitle the teacher to a hearing, Calvin v. Rupp,

471 F. (2d) 1336, 1348 (8th Cir. 1973). The Court of Appeals

for the Fifth Circuit has thus concluded that the mere presence

of derogatory information in an employer's file does not

infringe upon a protected liberty, Sims v. Fox, 505 F. 2d 857,

863 (Sth Cir. 1974).

It is well settled that it is the perogative of the school district

as an employer to determine whether a teacher’s contract of

employment should be renewed since the quality of the teacher

is the primary consideration. Orr v. Trinter, 444 F. (2d) 128, 135

(6th Cir. 1971). Of course, the state has an interest in inquiring

into the fitness and suitability of its employees for public

services, Garner v. Board of Public Works, 95 L. (3d) 1317, 1323

(1951), and the school administration must therefore have the

right, as well as the duty, to evaluate the performance of a

teacher in the classroom in order to determine whether that

performance is satisfactory. Hetrick v. Martin, 480 F. (2d) 705,

707-08 (6th Cir. 1973). A school administration may therefore

validly decline to renew a teacher’s contract where the decision

is grounded upon the performance of a teacher, Cook County

Teacher’s Union Local 1600 v. Byrd, supra, and where the

policies or actions of a school administration appear to be

valid, the burden is upon the teacher to show that the actions

-19-

or policies are unrelated to either educational processes or

working relationships. McEnteggart v. Cataldo, 451 F. (2d)

1109, 1111 (ist Cir. 1971), cert. denied, 33 L. Ed. (2d) 767

(1972). It is thus obvious that the termination or non-retention

of personnel is inherently vested in the local school boards.

The concept of a “liberty interest’’ falls within the ambit of

the 14th Amendment's protection from deprivation of “‘ife,

liberty or property”. As previously stated, continued public

employment is not a privilege to which constitutional rights

attach. In Board of Regents v. Roth, supra, the Court dealt

with the issue of a liberty interest in a case in which the plain-

tiff teacher alleged a denial of a “liberty” interest because the

non-renewal of his contract would have had an adverse result

on his opportunities for future employment. In rejecting this

argument, the Court stated that a “liberty’’ extends to the

following:

“(f)he right of an individual tu contract, to engage

in any of the common occupations of life, to acquire

useful knowledge, to marry, establish a home and

bring up children, to worship God according to the

dictates of his own conscience, and generally to

enjoy those privileges long-recognized . . . . as essen-

tial to the orderly pursuit of happiness by free men.”

Id. at 558.

The Roth Court refused to find that non-renewal of the plain-

tiffs contract with the School District deprived him of liberty

or due process, and illustrated two situations in which the

school districty could deny a “liberty” to a teacher, to-wit:

(1) In those cases where the non-retention foreclosed the

opportunity of a teacher to take advantage of future employ-

ment, Jd. at 559, and in those cases where the good name,

reputation, honor or integrity of the teacher is at stake, such

as in the assertion of criminal charges, Jd. at 558, or the asser-

tion of immorality. Jenkyns v. Board of Education, 294 F. (2d)

260, 261 (D.C. Cir. 1951). Even under these circumstances,

however, the school district may continue to refuse to rehire a

teacher even if he vindicates his name. Board of Regents v.

Roth, supra.

In Kelly v. Baton Rouge Parish School Board, 517 F. (2d)

194 (Sth Cir. 1975), it was held that the mere fact that non-

retention by a school system might make a teacher less attrac-

tive to other school systems does not constitute deprivation of a

liberty interest. In LaBorde v. Franklin Parish School Board,

510 F. (2d) 590 (Sth Cir. 1975), the plaintiff teacher sought

relief for alleged violations of her purported liberty interest.

The grounds set forth by the school district for the non-

retention of the plaintiff included the following:

(1) Use of language unbecoming a teacher in the classroom.

(2) Refusal or inability to carry out directive instructions of

the principal and the superintendent.

(3) Reporting late for the beginning of the school day.

(4) Unsatisfactory control of students within her classes.

(5) Uncooperative attitude toward the principal of the

school.

(6) Improper supervision and planning for FHA elections.

(7) Use of harsh discipline against girls in the junior high

school. Id. at $92.

The plaintiff contended that the termination damaged her

reputation and good name and foreclosed other employment

opportunities. The United States District Court granted the

26.

defendant’s motion for summary judgment, and the Court of

Appeals for the Fifth Circuit affirmed, and in so doing stated

the following settled standard:

“The underlying and ucontroverted facts disclosed

that the school board did not make any charge

against Mrs. LaBorde of a nature calculated to

damage her standing or reputation in the community.

No ‘liberty’ right she possessed was infringed. She

was not charged with dishonesty or immorality. nor

did the school board impose on her any stigma or

disability that foreclosed her freedom to take advan-

tage of other employment opportunities . . . (T)he

reasons which the school board gave her for ter-

minating her contract were no more than the reflec-

tion of dissatisfaction with her teaching methods and

classroom conduct. None of the charges were made

public by school officials. Their mention in the local

paper that her contract had not been renewed did not

impugn Mrs. LaBorde’s good name, honor or integrity.

Under Roth’s standards, her liberty claim was proper-

ly denied.” Id. at 593.

The Court concluded that summary judgments are proper in

such factual situations. In the instant case, there is no evidence

of any local newspapers publicizing the non-retention of Ms.

Kellner. It has further been held that even if the fact of non-

retention might effect the ability of the teacher to find other

work, such does not constitute a deprivation of a “liberty”

within the meaning of the due process clause. Robinson v.

Jefferson County Board of Education, 458 F. (2d) 1381, 1282

(Sth Cir. 1973). The summary judgment was clearly mandated

under the facts before the trial court, Cooper v. Curry, 399

F. Supp. 373, 374 (S.D. Miss. 1975); Springston v. King, 399

F. Supp. 985, 989 (W.D. Va. 1975). There is no summary

judgment evidence reflecting that the grounds for non-retention

-22-

set forth in this action in any way advocated that Ms. Kellner

was either dishonest or immoral, nor is there any evidence

that such was publicized. Griffin v. Lancaster, 400 F. Supp.

421, 423 (W.D. La. 1975). The petitioner has done nothing

more than allege a broad and unsubstantiated assertion that

she was deprived of some liberty right. There was no contention

that the school district’s refusal for rehiring her foreclosed

the possibility of future alternative employment, and the

record on appeal is totally devoid of any contention that the

petitioner has even sought alternative employment. Moreover,

it was not contended that the non-renewal of the petitioner’s

contract placed a serious blight on her name. She stated in her

original complaint that her contract was not renewed on the

grounds of “poor judgment” and “poor class management,”

neither of which would result in the placement of such a

blight on her name, all of which she criticizes as being “‘vague

and ambiguous”. The Court of Appeals for the Fifth Circuit

has upheld as valid grounds for non-renewal of teacher contracts

inefficiency, incompetency and insubordination, McDowell v.

State of Texas, 465 F. (2d) 1342 (Sth Cir. 1971), aff'd, en banc,

465 F. (2d) 1349 (1972); Norman v. Duval County School

Board, 361 F. Supp. 1167, 1175 (M.D. Fla. 1973); Robinson v.

Jefferson County Board of Education, 485 F. (2d) 1381, 1382

(Sth Cir. 1973). Certainly poor performance in the classroom

and neglect of duties may be grounds to decline or to rehire a

teacher, Thompson v. Madison County Board of Education, 476

F. (2d) 676, 679 (5th Cir. 1973), as is the failure to render

satisfactory service, Hix v. Toluso, supra, and the refusal to

comply with the administrative obligations. Simard v. Board of

Education, 473 F. (2d) 988, 994 (2nd Cir. 1973). Although the

record on appeal reflects that there were more reasons than

those of “poor judgment” and “poor class management”, it is

clear that these grounds are sufficient upon which to predicate

a non-renewal of teaching contract and did constitute notice

under the law.

The petitioner failed to allege a claim or cause of action

under any alleged “liberty” interest or denial of substantive

due process, and thus failed to state a claim upon which relief

could be granted. There is no genuine issue as to any material

fact in this regard and the respondents were entitled to a

judgment as a matter of law.

C. THE PETITIONER FAILED TO EXHAUST HER AVAIL-

ABLE ADMINISTRATIVE REMEDIES PRIOR TO

INITIATION OF THIS ACTION.

The Courts are reluctant to exercise jurisdiction over cases

involving non-renewal of teacher contracts until a teacher has

exhausted her administrative remedies. It is a firmly established

doctrine that a classroom instructor has no right to continued

public employment, Ferguson v. Thomas, 430 F. (2d) 852, 857

(Sth Cir. 1970). In Ferguson, supra, the Court of Appeals

cautioned against court procedures which allow the full develop-

ment of cases involving non-renewal of the teacher contract

on the ground that such development constitutes an intrusion

into the internal affairs of state educational institutions as well

as placing an unwise burden on the judicial administration of

the courts. It has also been stated that if “the instructor”

challenges his termination on grounds that his constitutional

rights have been infringed, a decision of that claim may and

should be avoided if valid non-discriminatory grounds are

shown to have been the basis for the institution’s action.

Id. at 859. It has also been stated that the Courts are not

equipped for either training or experienced to select the faculty

and staff for a hearing on the dismissal of a teacher and the

Court should only interfere where there is a clear case of

constitutional infringement, Duke v. North Texas State Univer-

sity, 469 F. (2d) 829, 838 (Sth Cir. 1973). It is not the function

of the Federal District Courts to pass upon the wisdom of a

hearing regarding the continued employment of the school

faculty member, Ortwein v. Mackey, supra. In addition, the

United States Court for the Southern District of Texas enunci-

ated the following standard:

“This Court is firmly of the opinion that a school

board should be entirely unfettered to discharge any

teacher without tenure which it considers to be unfit

to teach.” Gay v. Wheeler, supra.

The Circuits are generally in accord that prior to seeking judicial

review, the plaintiff must request and exhaust available adminis-

trative remedies. Beattie v. Roberts, 436 F. (2d) 747, 478-49

(Ist Cir. 1971); Eisen v. Eastman, 421 F. (2d) 560, 569 (2nd

Cir. 1969); cert. denied, 47 L. Ed. (2d) 75 (1970); Whitner v.

Davis, 410 F. (2d) 24, 29 (9th Cir. 1969). The petitioner rejected

offers to participate in administrative remedies since by letter

dated July 25, 1975, Mr. James A. McClane the President of

the Board of Trustees of the Karnes City Independent School

District, offered the petitioner a hearing concerning the Board’s

decision to not offer her a contract for the 1975-76 school

year. As concluded by the District Court and the Court of

Appeals for the Fifth Circuit, petitioner failed to allege that she

had ever been denied a hearing informing her of the grounds

for non-retention nor did she ever allege that she desired such

a hearing.

Moreover, the petitioner has made no effort whatsoever to

exhaust other available administrative remedies. Section

11.13(a) of the Texas Education Code provides that if persons

having a dispute arising from actions or decisions of any Board

of Trustees may appeal in writing to the Commissioner of

Education who shall, subsequent to due notice to all interested

parties, hold a hearing and render a decision. The Courts of the

State of Texas have consistently held that the persons and

employees involved in disputes with school districts must ex-

haust all available administrative remedies and appeal to higher

-25-

school authorities prior to resorting to the Courts. and the

Courts are without jurisdiction until the exhaustion of such

administrative remedies. McCrae v. Lindale Ind. School Dist.,

450 S.W. (2d) 118, 121 (Tex. Civ. App. —Tyler 1970. writ ref'd

n.r.e.). It has been held that the exhaustion of administrative

remedies is a condition precedent to the jurisdiction of the

Courts, County School Trustees v. Common School Dist. No. 6,

284 S.W. 306, 307 (Tex. Civ. App. — Eastland 1926. no writ),

and the Courts must dismiss a cause of action until such ad-

ministrative remedies have been exhausted. Chastain v. Mauldin,

32 S.W. (2d) 235, 237 (Tex. Civ. App. — Austin 1930. no writ).

As stated in Plains Common Consolidated School Dist. No. 1 v.

Hayhurst, 120 S.W. (2d) 322 (Tex. Civ. App. — Amarillo 1938,

no writ),

“It seems to be the fixed policy of the legislature to

create an educational system of public free schools

that is sufficient unto itself and free as far as practical

from any interference by the judiciary. The Courts

fully recognize the desire of the legislative branch of

the state government and uniformly hold that the

remedies provided for before school authorities must

be exhausted before the Courts will interfere.” Id.

at 327.

In the instant case, the petitioner has made no effort whatso-

ever to exhaust any, much less all, of her available administra-

tive remedies under Texas Law, nor has she even alleged such

attempts.

CONCLUSION

This action is not a matter where the Court of Appeals has

rendered a decision in conflict with the decisions of another

circuit Court of Appeals (and no such conflict is reflected in

the petition), nor have either of the Lower Courts departed

from the accepted and usual course of proceedings. The petition

sets forth no valid grounds supporting the granting of a writ of

certiorari in this matter, and the actions of the Lower Courts

are fully supported by the record on appeal and are predicated

upon well-settled legal principles. For the foregoing reasons, the

respondents pray that the Honorable Supreme Court of the

United States deny the petitioner’s writ of certiorari.

Respectfully submitted,

EDWARD P. FAHEY

J. MICHAEL MYERS

BY Codvwuch (P. “be 4

ATTORNEYS FOR RESPONDENTS,

The Individual Members of the

Board of Trustees of the Karnes

City Independent School District

OF COUNSEL:

GROCE, LOCKE & HEBDON

2000 Frost Bank Tower

San Antonio, Texas 78205

27

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the fore-

going has been served upon Mr. Larry Watts, 5620 Greenbriar,

Suite 103, Houston, Texas 77005, and to Mr. Emerson Banack,

Foster, Lewis, Langley, Gardner and Banack, Frost Bank

Tower, San Antonio, Texas 78205, on this the 18th day of

March __, 1977.

[1]

EXHIBIT “A”

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MS. ETTA LEE KELLNER,

Plaintiff

vs.

KARNES CITY INDEPENDENT

SCHOOL DISTRICT, a Political

Subdivision of the State of Texas;

MR. M. E. ASMAN, both Individually

and in his Official Capacity as

Superintendent of the Schools of

the Karnes City Independent School

District, MR. JAMES McCLANE,

MRS. MARY AHRENS, MR. MARVIN

WITTE, MR. ALOIS LINHART,

MR. HILMER WAGENER and

MR. KENNETH MATTHEYNS, all both

Individually and in their respective

Official Capacities as Members of the

Board of Trustees of the Karnes City

Independent School District;

MR. D.R. LUTHRINGER, both

Individually and in his Official Capacity

as Principal of City Elementary in the

Karnes City Independent School

District ,

Defendants.

)

)

)

)

)

)

Civil Action No.

SA 75 CA 187

[1] [2]

ORIGINAL ANSWER OF THE DEFENDANT INDIVIDUAL

MEMBERS OF THE BOARD OF TRUSTEES OF THE

KARNES CITY INDEPENDENT SCHOOL DISTRICT

Now come Mr. James McClane, Mrs. Mary Ahrens, Mr.

Marvin Witte, Mr. Alois Linhart, Mr. Hilmer Wagener and

Mr. Kenneth Matthews, and for answer to plaintiff's complaint

on file herein, would respectfully show to the Court the follow-

ing, to-wit:

FIRST DEFENSE

These defendants deny that this Court has jurisdiction of this

cause for the reason that the complaint does not show upon its

face, and it is a fact, that the plaintiff has not exhausted her

administrative remedies available to her under law.

SECOND DEFENSE

These defendants say that the complaint fails to state a cause

of action against these defendants and for this reason these

defen- [2] dants should be discharged promptly with their

costs anu the complaint held for naught insofar as these defen-

dants ave concerned.

THIRD DEFENSE

I

These defendants deny that this Court has jurisdiction of

this cause as alleged in Paragraph I of the complaint, but admit

that the plaintiff has alleged that a cause of action is brought

under Titles 28 and 42 U.S.C.A., and the Constitution of the

United States. These defendants do not have personal know-

ledge that the actual amount in controversy exceeds $10,000.00,

A-2

a ee

[2] [3]

and therefore can neither admit nor deny the same for lack of

knowledge and demand strict proof thereof. These defendants

specially deny that the plaintiff has alleged a cause of action

pursuant to 28 U.S.C. § 1332.

A. These defendants admit that so far as they know and are

advised, the plaintiff is a citizen of Texas and the United States,

and resides within the jurisdiction of this Court.

B. These defendants deny that Mrs. Mary Ahrens is a member

of the Board of Trustees of the Karnes City Independent School

District, but otherwise admit that the names, descriptions and

addresses of these defendants described under Paragraph II(B)

are correctly alleged by the complaint insofar as that informa-

tion is and has been made known to these defendants.

Ill

A. (1) In response to Paragraph III(A)(1), these defendants

admit that plaintiff is a female, but state that they do not have

personal knowledge that said plaintiff is certified to teach in

the public schools of the State of Texas.

(2) In response to Paragraph III(A)(2), these defendants

do not have personal knowledge of the factual allegations set

forth in said Paragraph, and can neither admit nor deny the

same for want of knowledge. These defendants additionally

deny that the plaintiff is a “‘teacher” in the general construction

and usual definition of said term.

(3) In response to Paragraph III(A)(3), these defendants

do not have personal knowledge of the factual allegations set

forth [3] in said Paragraph, and can neither admit nor deny

the same for want of knowledge. Moreover, these defendants

[3] [3]

deny that plaintiff is a “teacher” under the general construction

and usual definition of said term.

(4) In response to Paragraph III(A)(4), these defendants

do not have personal knowledge of the allegations contained in

said Paragraph, and therefore deny such allegations for lack of

sufficient information.

(5) In response to Paragraph III(A)(5), these defendants

do not have personal knowledge regarding a requested meeting

with the Board of Trustees of the defendant, Karnes City

Independent School District, or a meeting between the plaintiff

and said Board on April 7, 1975. In addition, these defendants

do not have personal knowledge that the plaintiff requested

that she be given a list of reasons for non-renewal in order that

she might correct any deficiencies in the performance of her

duties, and therefore deny such allegations for lack of informa-

tion. These defendants specially deny that the plaintiff has

never been presented with areas of unsatisfactory performance.

(6) In response to Paragraph III(A)(6), these defendants

do not have personal knowledge of the allegations contained in

said Paragraph, and therefore deny the same for lack of know-

ledge.

(7) In response to Paragraph III(A)(7), these defendants

specially deny that the plaintiff has at no time been apprised of

any specific reasons for non-renewal. Moreover, the defendants

assert that “poor judgment” and “poor class management” are

neither vague nor ambiguous, and specially deny that such

references are vague or ambiguous.

(8) In response to Paragraph III(A)(8), these defendants

do not have sufficient knowledge regarding the allegations set

forth in said Paragraph, and therefore deny the same for want

of knowledge. Moreover, these defendants deny the plaintiff is

A-4

[3] [4]

a “teacher” within the general construction and usual definition

of said term.

B. (1) In regard to Paragraph III(B)(1), these defendants

deny the allegations contained in said Paragraph.

[4] (2) In regard to Paragraph III(B)(2), these defen-

dants deny the allegations contained in said Paragraph.

C. (1) In regard to Paragraph III(C)(1), these defendants

deny the allegations contained in said Paragraph.

(2) In regard to Paragraph I1I(C)(2), these defendants

specially deny the allegations contained in said Paragraph.

IV

These defendants deny any of the allegations contained in or

that the piaintiff is entitled to any of the relief requested in

Sub-Paragraphs A, B, C, D, E, F, and G of Paragraph IV of the

complaint.

FOURTH DEFENSE

Subject to such admissions and stipulations as may be made

on the trial of this case, these defendants deny the allegations

contained in the complaint and demand strict proof thereof.

FIFTH DEFENSE

These defendants allege individually that each of said defen-

dants are not individually liable to the plaintiff for any of the

claims made by her in her complaint, and, insofar as each of

these defendants are concerned in his individual capacity, the

plaintiff's claim should be, in all things, denied. Moreover, these

defendants allege individually that any action taken by them

[4] [5]

individually was in the good faith exercise of their supervision

duties.

SIXTH DEFENSE

These defendants further allege that the plaintiff herein has

no legitimate claim to continued employment with the defen-

dant, Karnes City Independent School District.

SEVENTH DEFENSE

These defendants further allege that any non-renewal of the

employment contract between the plaintiff and the defendant,

Karnes City Independent School District, if any, was in the best

interest of said District and that the non-renewal of her contract

by the District, if any, was based upon just causes.

EIGHTH DEFENSE

These defendants further allege that the plaintiff herein is

and was, at the time of the alleged non-renewal of her con-

tractual [5] agreement with the defendant school district,

if any, a non-tenured employee on a year-to-year basis with

the defendant district with no expectancy of a renewal contract

annually, and therefore is neither entitled to continued employ-

ment with said District nor the holder of a protected property

interest as might be held by a tenured employee.

NINTH DEFENSE

These defendants further allege that the plaintiff herein is

and was, at the time of the alleged non-renewal of her contrac-

tual agreement with the defendant school district, a non-

tenured employee on a year-to-year basis with the defendant

district, and is therefore not entitled to due process.

A-6

[5] [6]

TENTH DEFENSE

In the alternative, these defendants allege that the plaintiff

herein was accorded all of the rights and benefits of due process,

even though she was not so entitled, and that any hearing

allowed the plaintiff was done gratuitously and is -ot open to

judicial review.

ELEVENTH DEFENSE

These defendants rely upon the Eleventh Amendment as a

defense in this cause, and assert that the nature of this action is

an unlawful attempt to sue the sovereign state in violation of

the Eleventh Amendment.

TWELFTH DEFENSE

These defendants allege that the common-law doctrine of

immunity is a defense in this case.

THIRTEENTH DEFENSE

These defendants deny that the requested injunctive relief

sought in the plaintiffs original complaint is an appropriate

remedy in this cause, on the grounds that, without admitting

the plaintiff has any valid cause of action under any theory of

law, there is, and the plaintiff even so admits herein, that there

is available a plain, adequate and complete remedy at law.

WHEREFORE, PREMISES CONSIDERED, these defendants

pray that this cause be dismissed for want of jurisdiction

because administrative remedies have not been exhausted; that

the same be dismissed for [6] the failure to state a cause of

action upon which relief can be granted against these defen-

dants, jointly and individually; that upon final hearing hereof

plaintiff be denied any relief at all in any manner, and particu-

[6] [6]

larly take nothing against these defendants: and that these

defendants go hence with their costs, and have such other relief

to which they may be justly and equitably entitled.

GROCE, LOCKE & HEBDON

Damon Ball

2000 Frost Bank Tower

San Antonio, Texas 78205

ATTORNEYS FOR THE DEFENDANT

INDIVIDUAL MEMBERS OF THE

BOARD OF TRUSTEE OF THE

KARNES CITY INDEPENDENT

SCHOOL DISTRICT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above

foregoing Original Answer of the Defendant Individual Members

of the Board of Trustees of the Karnes City Independent School

District has been forwarded to Mr. Larry Watts, 5620 Green-

briar, Suite 103, Houston, Texas 77005, plaintiff's attorney of

record, and to Mr. Emerson Banack, Foster, Lewis, Langley,

Gardner and Banack, Frost Bank Tower, San Antonio, Texas

78205, by placing same in the United States Mail postage

prepaid, on this, the _____ day of August, A.D., 1975.

Damen Ball

A-8

EXHIBIT “B”

Karnes City Independent School District

M. E. Asman, Superintendent

P.O. Box 38 - 780-2321

Karnes City, Texas 78118

July 25, 1975

Mrs. Etta L. Kellner

P.O. Box 396

Karnes City, Texas 78118

Dear Mrs. Kellner:

The Board of Trustees of the Karnes City Independent School

District at an emergency meeting held on July 25, 1975, voted

unanimously to offer you a hearing conceming the prior deci-

sion of the Board not to offer you a contract for the school

year 1975-76. Such hearing shall be public unless you request it

to be closed. At such hearing you may be represented by an

attorney of your choice. You or your attorney may cross-

examine witnesses presented on behalf of the school district

and may present such evidence as you deem beneficial to the

School Board. A court reporter may transcribe the hearing and

you may procure a copy of the transcript at your expense.

You are hereby notified that the reasons for the non-renewal of

your contract are as follows:

1. You exercised poor judgment in your capacity as a teacher

in the following respects:

a. You have exhibited hostility to students.

b. You have used unnecessary force in administration of

corporal punishment.

A-9

c. You have violated administrative directive by fre-

quently leaving the school campus during your

conference period.

2. You have exhibited poor classroom management in the

following respects:

a. Maintain poor classroom discipline.

b. Failed to prepare lesson plans either for yourself or

substitute teacher.

c. You have violated administrative directive by leaving

classroom unsupervised and by leaving classroom

frequently during normal class time.

3. You failed to maintain grade book properly and record

grades on report cards accurately.

4. You failed to perform teaching duties in a manner which

would meet the accepted standard of conduct for the

profession as recognized and applied in similarly situated

school districts throughout Texas.

Page 2

It is anticipated that the following individuals will testify at the

hearing concerning the above charges:

M. E. Asman D. R. Luthringer Roger Sides

J. L. Harris Muriel Hartman Laquita Gibbens

Ralph Jentsch Mr. & Mrs. Edward Janek

Please advise the Board, in writing, within 15 days from receipt

of this letter if you desire to have a hearing concerning the

Board’s decision not to offer you a contract for 1975-76 school

year. It is the School Board’s desire to extend to you and fully

protect all constitutional due process rights which you may

possess.

By copy of this letter we are notifying your attorney, Mr.

Larry Watts, of your right to request a hearing. Mr. Watts may

communicate with the attorney for the School Board, Emerson

A-10

Banack, Jr. 1655 Frost Bank Tower San Antonio, Texas 78205,

A/C 512-226-3116, concerning a time and date for a hearing if

you so desire.

Yours truly,

/s/ James A. McClane

James A. McClane

President Board of Trustees

Karnes City Ind. School Dist.

ec: Larry Watts

A-11

[1] [1]

EXHIBIT “C”

[1] IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ETTA LEE KELLNER

)

)

V. ) SA-75-CA-187

)

KARNES CITY INDEPENDENT _—+»)

SCHOOL DISTRICT, ET AL. )

ORDER

FILED: November 14, 1975

On this __14th_ day of November, 1975, came on to be

considered the Motion to Dismiss for Failure to State a Claim

Upon Which Relief May be Granted filed by the defendants in

the above styled and numbered cause pursuant to Rule 12 (b)

(6), Federal Rules of Civil Procedure. Attached to the Motion

of the defendants are two Exhibits: the most recent contract

between the defendant School District and the plaintiff and a

letter from the President of the Board of Trustees to the plain-

tiff offering her an administrative hearing and outlining the

basis for the decision not to renew the plaintiff's contract.

Normally, of course, a Rule 12 (b) (6) motion is a challenge to

the sufficiency of the plaintiff's pleadings and such evidence

outside the pleadings is not considered. Rule 12, however,

empowers the Court, in its discretion, to consider such evidence

and in the event this is done to convert the motion into a plea

for Summary Judgment:

A-12

oe ee

[1] [2]

|

|

!

vided in Rule 56, and all parties shall be given reason-

able opportunity to present all material made per-

tinent to such a motion by Rule 56.”

See also Wright & Miller, Federal Practice & Procedure: Civil

Sections 1364 and 1366.

Having considered the Exhibits attached to the defendants’

motion, the Court concludes that they are of probative value

{2} and should be considered. This being the case, the Motion

to Dismiss automatically becomes a Motion for Summary

Judgment which shall be adjudicated in compliance with Rule

56, Federal Rules of Civil Procedure. “A Motion to Dismiss for

failing to state a claim upon which relief can be granted must

be treated as a Motion for Summary Judgment if matters

outside the pleadings are considered.” Tulley v. Heyd, 482 F.

2d 590, 592 (Sth Cir., 1973). See also Ingram v. Dunn, 383 F.

Supp. 1043, 1045 (Northern District, Georgia, 1974).

Accordingly, it is ORDERED that within fifteen (15) days

of the entry of this Order the plaintiff submit to the Court any

evidence she wishes the Court to consider under Rule 56,

Federal Rules of Civil Procedure. Following the plaintiff's

submission, the defendants shall have ten (10) days in which to

respond. Should the plaintiff wish to reply to the defendants’

response, she shall so inform the Court immediately upon

receipt of the defendants’ response.

A-13

[2]

ORDERED AND ENTERED this _14th_ day of November,

1975.

J bal Jr.

[2]

JOHN H. WOOD, JR.

UNITED STATES DISTRICT JUDGE

A-14

— EE

[1] [1]

EXHIBIT “D”

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MS. ETTA LEE KELLNER. )

Plaintiff )

VS. ) CIVIL ACTION NO.

SA-75-CA-187

KARNES CITY INDEPENDENT ) .

SCHOOL DISTRICT, A POLITICAL

SUBDIVISION OF THE STATE OF )

TEXAS, ET AL

Defendant )

AFFIDAVIT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

My name is JAMES A. McCLANE. I was a member of the

Board of Trustees of the Karnes City Independent School

District between the periods of March, 1975 and July, 1975,

and on or about May, 1975 I participated in a decision made by

the Board of Trustees of the Karnes City Independent School

District to not renew the teaching contract between the Karnes

City Independent School District and Ms. Etta Lee Kellner. I

have personal knowledge of the facts set forth hereinbelow.

I was acting in the performance of my official duties as a

member of the Board of Trustees of the Karnes City Indepen-

A-15

[1] [2]

dent School District and undertook the same in good faith.

There was no arbitrary action on my part, or to the best of my

knowledge, on the part of any other individual member of the

Board of Trustees of the Karnes City Independent School

District in arriving at the decision to not renew the teaching

contract of Ms. Etta Lee Kellner for the 1975-1976 school

term. The decision to not renew the contract of Ms. Etta Lee

Kellner for the 1975-76 school term was a conscientious deci-

sion on my part in which I independently exercised my judg-

ment in a matter that I believed to be in the long-term interest

of the School District and the students enrolled, and to be

enrolled in the future, in the Karnes City Independent School

District. There was no improper motivation or malicious

[2] intent involved in arriving at the determination that Ms.

Etta Lee Keliner should not be the recipient of a renewed

contract with the Karnes City Independent School District.

_The contract between Ms. Etta Lee Kellner and the Karnes

City Independent School District was not renewed for good and

valid reasons, including, among other things, the following:

1.Ms. Etta Lee Kellner exercised poor judgment in her

Capacity as a teacher in the following respects:

(a) She exhibited hostility toward students.

(b) She used unnecessary force in the administration of

corporal punishment.

(c) She violated administrative directives by frequently

leaving the school campus during her conference

2. She exhibited poor classroom management in the follow-

ing respects:

A-16

[2] [3]

(a) She maintained poor classroom discipline.

(b) She failed to prepare her lesson plans either for

herself or substitute teachers.

(c) She violated administrative directives by k-aving the

classroom unsupervised and by leaving the classroom

frequently during normal class time.

3. She failed to maintain her grade book properly and to

record grades on the report cards accurately.

4. She failed to perform her teaching duties in a manner

which would meet the accepted standard of conduct for

the profession as recognized and applied in similarly

situated school districts throughout the State of Texas.

Furthermore, I, James A. McClane, on or about July 25,

1975, wrote a letter to Ms. Etta Lee Kellner, and placed the

same in the United States Mails, notifying her of the foregoing

reasons for the non-renewal of her contract for the 1975-76

[3] school year with the Karnes City Independent School

District, and at that time offered her a hearing concerning the

decision of the Board of Trustees of the Karnes City Indepen-

t School District to not offer her a contract for the 1975-

ool year. In said letter, I informed Ms. Kellner that

individuals, named therein, would probably testify at

hearing concerning the above charges, and requested that

Ms. Kellner advise the Board of Trustees, in writing, within

fifteen (15) days from receipt of said letter if she desired to

have a hearing concerning the Board’s decision to not offer her

a contract for the 1975-76 school year. Ms. Kellner has not

made a response to said letter to date.

+H:

I hereby certify that to the best of my personal knowledge

and upon my oath that I have read the foregoing statements

A-17

[3] [3]

and believe the same to be true and valid.

/s/ James A. McClane

James A. McClane

STATE OF TEXAS )

COUNTY OF KARNES )

BEFORE ME, a Notary Public, on this day

peared JAMES McCLANE, known to me to ee. a

whose name is subscribed to the foregoing instrument and

acknowledged to me that he executed the same for the purposes

and consideration therein expressed.

GIVEN under my hand and seal of office this 25th day

of __November_ _, 1975.

[s/ Mary R. Ahrens _

Notary Public in and for

Karnes County, Texas

A-18

[1] [1]

EXHIBIT “E”

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION .

MS. ETTA LEE KELLNER, )

Plaintiff )

VS. ) CIVIL ACTION NO.

: - §$A-75-CA-187

KARNES CITY INDEPENDENT )

SCHOOL DISTRICT, A POLITICAL

SUBDIVISION OF THE STATE OF )

TEXAS, ET AL

Defendant )

AFFIDAVIT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

My name is MARVIN WITTE. I was a member of the Board

of Trustees of the Karnes City Independent School District

between the periods of March, 1975 and July, 1975, and on or

about May, 1975 I participated in a decision made by the Board

of Trustees of the Karnes City Independent School District to

not renew the teaching contract between the Karnes City

Independent School District and Ms. Etta Lee Kellner. I have

personal knowledge of the facts set forth hereinbelow.

I was acting in the performance of my official duties as a

member of the Board of Trustees of the Karnes City Indepen-

A-19

(1) | [2]

dent School District and undertook the same in good faith.

There was no arbitrary action on my part, or to the best of my

knowledge, on the part of any other individual member of the

Board of Trustees of the Karnes City Independent School

District in arriving at the decision to not renew the teaching

contract of Ms. Etta Lee Kellner for the 1975-1976 school

term. The decision to not renew the contract of Ms. Etta Lee

Kellner for the 1975-76 school term was a conscientious deci-

sion on my part in which I independently exercised my judg-

ment in a matter that I believed to be in the long-term interest

of the School District and the students enrolled, and to be

enrolled in the future, in the Karnes City Independent School

District. There was no improper motivation or malicious

[2] intent involved in arriving at the determination that Ms.

Etta Lee Kellner should not be the recipient of a renewed

contract with the Karnes City Independent School District.

The contract between Ms. Etta Lee Kellner and the Karnes

City Independent School District was not renewed for good and

valid reasons, including, among other things, the following:

1.Ms. Etta Lee Kellner exercised poor judgment in her

capacity as a teacher in the following respects:

(a) She exhibited hostility toward students.

(b) She used unnecessary force in the administration of

corporal punishment.

(c) She violated administrative directives by frequently

leaving the school campus during her conference

periods.

2. She exhibited poor classroom management in the follow-

ing respects:

[2] [3]

(a) She maintained poor classroom discipline.

(b) She failed to prepare her lesson plans either for

herself or substitute teachers.

(c) She violated administrative directives by leaving the

classroom unsupervised and by leaving the classroom

frequently during normal class time.

3. She failed to maintain her grade book properly and to

record grades on the report cards accurately.

4. She failed to perform her teaching duties in a manner

which would meet the accepted standard of conduct for

the profession as recognized and applied in similarly

situated school districts throughout the State of Texas.

I hereby certify that to the best of my personal knowledge

and upon my oath that I have read the foregoing statements

and believe the same to be true and valid.

/s/ Marvin Witte

Marvin Witte

[3] STATE OF TEXAS)

COUNTY OF KARNES )

BEFORE MF, a Notary Public, on this day personally ap-

peared MARVIN WITTE, known to me to be the person whose

name is subscribed to the foregoing instrument and acknow-

A-21

ledged to me that he executed the same for the purposes and

consideration therein expressed.

GIVEN under my hand and seal of office this _25th day

of . .November_, 1975.

[s/ Mary R. Ahrens

Notary Public in and for

Karnes County, Texas

A-22

[1] oll]

EXHIBIT “F”’

{1} IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MS. ETTA LEE KELLNER, )

Plaintiff )

VS. ) CIVIL ACTION NO.

SA-75-CA-187

KARNES CITY INDEPENDENT )

SCHOOL DISTRICT, A POLITICAL

SUBDIVISION OF THE STATE OF )

TEXAS, ET AL

Defendant )

AFFIDAVIT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

My name is KENNETH MATTHEWS. I was a member of the

Board of Trustees of the Karnes City Independent School

District between the periods of March, 1975 and July, 1975,

and on or about May, 1975 I participated in a decision made by

the Board of Trustees of the Karnes City Independent School

District to not renew the teaching contract between the Karnes

City Independent School District and Ms. Etta Lee Kellner. I

have personal knowledge of the facts set forth hereinbelow.

I was acting in the performance of my official duties as a

member of the Board of Trustees of the Karnes City Indepen-

A-23

[1] . [2]

dent School District and undertook the same in good faith.

There was no arbitrary action on my part, or to the best of my

knowledge, on the part of any other individual member of the

Board of Trustees of the Karnes City Independent School

District in arriving at the decision to not renew the teaching

contract of Ms. Etta Lee Kellner for the 1975-1976 school

term. The decision to not renew the contract of Ms. Etta Lee

Kellner for the 1975-76 school term was a conscientious deci-

sion on my part in which I independently exercised my judg-

ment in a matter that I believed to be in the long-term interest

of the School District and the students enrolled, and to be

enrolled in the future, in the Karnes City Independent School

District. There was no improper motivation or malicious

[2] intent involved in arriving at the determination that Ms.

Etta Lee Kellnér should not be the recipient of a renewed

contract with the Karnes City Independent School District.

The contract between Ms. Etta Lee Kellner and the Karnes

City Independent School District was not renewed for good and

valid reasons, including, among other things, the following:

1.Ms. Etta Lee Kellner exercised poor judgment in her

capacity as a teacher in the following respects:

(a) She exhibited hostility toward students.

(b) She used unnecessary force in the administration of

corporal punishment.

(c) She violated administrative directives by frequently

leaving the school campus during her conference

periods.

2. She exhibited poor classroom management in the follow-

ing respects:

[2] | , [3]

(a) She maintained poor classroom discipline.

(b) She failed to prepare her lesson plans either for

herself or substitute teachers.

(c) She violated administrative directives by leaving the

classroom unsupervised and by leaving the classroom

frequently during normal class time.

3. She failed to maintain her grade book properly and to

record grades on the report cards accurately.

4. She failed to perform her teaching duties in a manner

which would meet the accepted standard of conduct for

the profession as recognized and applied in similarly

situated school districts throughout the State of Texas.

I hereby certify that to the best of my personal knowledge

and upon my oath that I have read the foregoing statements

and believe the same to be true and valid.

[s| Kenneth Matthews

Kenneth Matthews

[3] STATE OF TEXAS )

COUNTY OF KARNES )

BEFORE ME, a Notary Public, on this day personally ap-

peared KENNETH MATTHEWS, known to me to be the person

whose name is subscribed to the foregoing instrument and

A-25

(3) [3]

acknowledged to me that he executed the same for the purposes

and consideration therein expressed.

GIVEN under my hand and seal of office this 26 _ da

of _ November __, 1975. ;

/s/ Mary R. Ahrens

Notary Public in and for

Karnes County, Texas

{1} (1]

EXHIBIT “G”

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MS. ETTA LEE KELLNER, )

Plaintiff )

VS. ) CIVIL ACTION NO.

SA-75-CA-187

KARNES CITY INDEPENDENT )

SCHOOL DISTRICT, A POLITICAL

SUBDIVISION OF THE STATE OF )

TEXAS, ET AL

Defendant )

AFFIDAVIT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

My name is ALOIS LINHART. I was a member of the

Board of Trustees of the Karnes City Independent School

District between the periods of March, 1975 and July, 1975,

and on or about May, 1975 I participated in a decision made by

the Board of Trustees of the Karnes City Independent School

District to not renew the teaching contract between the Karnes

City Independent School District and Ms. Etta Lee Kellner. |

have personal knowledge of the facts set forth hereinbelow.

I was acting in the performance of my official duties as a

member of the Board of Trustees of the Karnes City Indepen-

A-27

[1] . [2]

dent School District and undertook the same in good faith.

There was no arbitrary action on my part, or to the best of my

knowledge, on the part of any other individual member of the

Board of Trustees of the Karnes City Independent School

District in arriving at the decision to not renew the teaching

contract of Ms. Etta Lee Kellner for the 1975-1976 school

term. The decision to not renew the contract of Ms. Etta Lee

Kellner for the 1975-76 school term was a conscientious deci-

sion on my part in which I independently exercised my judg-

ment in a matter that I believed to be in the long-term interest

of the School District and the students enrolled, and to be

enrolled in the future, in the Karnes City Independent

[2] School District. There was no improper motivation or

malicious intent involved in arriving at the determination that

Ms. Etta Lee Kellner should not be the recipient of a renewed

contract with the Karnes City Independent School District.

The contract between Ms. Etta Lee Kellner and the Karnes

City Independent School District was not renewed for good and

valid reasons, including, among other things, the following:

1.Ms. Etta Lee Kellner exercised poor judgment in her

Capacity as a teacher in the following respects:

(a) She exhibited hostility toward students.

(b) She used unnecessary force in the administration of

corporal punishment.

(c) She violated administrative directives by frequently

leaving the school campus during her conference

periods.

2. She exhibited poor classroom management in the follow-

ing respects:

A-28

[2] [3]

(a) She maintained poor classroom discipline.

(b) She failed to prepare her lesson plans either for

herself or substitute teachers.

(c) She violated administrative directives by leaving the

classroom unsupervised and by leaving the classroom

frequently during normal class time.

3. She failed to maintain her grade book properly and to

record grades on the report cards accurately.

4. She failed to perform her teaching duties in a manner

which would meet the accepted standard of conduct for

the profession as recognized and applied in similarly

situated school districts throughout the State of Texas.

I hereby certify that to the best of my personal knowledge

and upon my oath that I have read the foregoing statements

and believe the same to be true and valid.

/s/_Alois Linhart

Alois Linhart

{3} STATE OF TEXAS )

COUNTY OF KARNES )

BEFORE ME, a Notary Public, on this day personally ap-

peared ALOIS LINHART, known to me to be the person

whose name is subscribed to the foregoing instrument and

A-29

(3). [3]

acknowledged to me that he executed the same for the purposes

and consideration therein expressed.

GIVEN under my hand and seal of office this _26 day

of _ _November___, 1975.

/si Mary R. Ahrens _

Notary Public in and for

Karnes County, Texas

A-30

[1] [1]

EXHIBIT “H”

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MS. ETTA LEE KELLNER, )

Plaintiff )

VS. ) CIVIL ACTION NO.

SA-75-CA-187

KARNES CITY INDEPENDENT )

SCHOOL DISTRICT, A POLITICAL

SUBDIVISION OF THE STATE OF )

TEXAS, ET AL

Defendant )

AFFIDAVIT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

My name is HILMER WAGENER. I was a member of the

Board of Trustees of the Karnes City Independent School

District between the periods of March, 1975 and July, 1975,

and on or about May, 1975 I participated in a decision made by

the Board of Trustees of the Karnes City Independent School

District to not renew the teaching contract between the Karnes

City Independent Schvol District and Ms. Etta Lee Kellner. I

have personal knowledge of the facts set forth hereinbelow.

I was acting in the performance of my official duties as a

member of the Board of Trustees of the Karnes City Indepen-

A-31

(1) | [2]

dent School District and undertook the same in good faith.

There was no arbitrary action on my part, or to the best of my

knowledge, on the part of any other individual member of the

Board of Trustees of the Karnes City Independent School

District in arriving at the decision to not renew the teaching

contract of Ms. Etta Lee Kellner for the 1975-1976 school

term. The decision to not renew the contract of Ms. Etta Lee

Keliner for the 1975-76 school term was a conscientious deci-

sion on my part in which I independently exercised my judg-

ment in a matter that I believed to be in the long-term interest

of the School District and the students enrolled, and to be

enrolled in the future, in the Karnes City Independent School

District. There was no improper motivation or malicious

[2] intent involved in arriving at the determination that Ms.

Etta Lee Kellner should not be the recipient of a renewed

contract with the Karnes City Independent School District.

The contract between Ms. Etta Lee Kellner and the Karnes

City Independent School District was not renewed for good and

valid reasons, including, among other things, the following:

1.Ms. Etta Lee Kellner exercised poor judgment in her

Capacity as a teacher in the following respects:

(a) She exhibited hostility toward students.

(b) She used unnecessary force in the administration of

corporal punishment.

(c) She violated administrative directives by frequently

leaving the school campus during her conference

periods.

2. She exhibited poor classroom management in the follow-

ing respects:

A-32

[2] [3]

(a) She maintained poor classroom discipline.

(b) She failed to prepare her lesson plans either for

herself or substitute teachers.

(c) She violated administrative directives by leaving the

classroom unsupervised and by leaving the classroom

frequently during normal class time.

3. She failed to maintain her grade book properly and to

record grades on the report cards accurately.

4. She failed to perform her teaching duties in a manner

which would meet the accepted standard of conduct for

the profession as recognized .and applied in similarly

situated school districts throughout the State of Texas.

I hereby certify that to the best of my personal knowledge

and upon my oath that I have read the foregoing statements

and believe the same to be true and valid.

/s{ Hilmer Wagener

Hilmer Wagener

[3] STATE OF TEXAS )

COUNTY OF KARNES )

BEFORE ME, a Notary Public, on this day personally ap-

peared HILMER WAGENER, known to me to be the person

whose name is subscribed to the foregoing instrument and

A-33

[3] [3]

acknowledged to me that he executed the same for the purposes

and consideration therein expressed.

GIVEN under my hand and seal of office this _26 __ day

of . November __, 1975.

/s/ Mary R. Ahrens .

Notary Public in and for

Karnes County, Texas

A-34

EXHIBIT “I”

March 13, 1975

Mrs. Etta Lee Kellner

City Elementary School

Karnes City, TX.

Dear Mrs. Kellner:

At the Board of Trustees meeting of March 10, 1975, it was

the school board’s decision to delay action on your teacher

contract for 1975-76 until the June 1975 meeting.

The reason the Board made this decision was because of the

evaluation presented by the administrative staff.

In 1974-75, your yearly evaluation indicated that of 37 items

you rated commendable on 12 and acceptable on 25. This was

among the lowest rating of any faculty member retained on

the staff.

This year your rating on the same 37 items indicates 5 com-

mendable items, 26 acceptable items, and 6 needs improvement

items; quite a deterioration compared with the previous evalua-

tion which was not good to begin with.

Therefore, the Board will delay its consideration of your

employment for 1975-76 until this school year is completed.

Sincerely ,

/s/ M. E. Asman

M. E. Asman

Superintendent

Karnes City ISD

MEA:mlj

A-35

EXHIBIT “J”

TEACHER EVALUATION

Please grade each item 1 to 5:

1. Superior 4. Needs Improvement

2. Commendable 5. Unsatisfactory

3. Acceptable NA - Not Applicable

A. Professional Personal Qualities

(Rating)

.. 2... 1. Alertness.

2. 2. Enthusiasm.

—2 3. Initiative and industry.

_2__ 4. Positive attitude.

.__31_. 5. Tact, diplomacy and courtesy.

2 6. Self-confidence.

_3_ 7. Emotional stability.

..—_. 8. Sense of humor.

._3__ 9. Punctuality and good attendance record.

. -£.—. 10. Good voice quality and diction.

. 1. 11. Adequate physical vitality.

2 12. Appropriate dress and grooming.

..&_. 13. Ability to adjust to new programs and ideas.

..—2. 14. Good judgment.

2. 15. Cheerfulness.

B. Professional Performance

—2_ 1. Gives evidence of knowledge of subject matter.

—2 2. Gives evidence of ability to teach the subject.

3. 3. Develops effective plans.

A-36

ye ay

_ Se |

a Cy *

aM

oe

5

oe ae

Demonstrates effective use of class time.

Uses effectively available resources, teacher aids and

consultative services.

Recognizes individual differences.

Motivates pupils.

Understands and likes children.

Maintains effective class management.

__ 3_ 10. Gives attention to health and safety.

__3__ 11. Maintains a room conducive to learning.

___2__ 12. Uses supplies and equipment economically.

_ .3__ 13. Uses variety and creativeness in the instructional

program.

Teacher Evaluation (Continued)

C. Professional Responsibility

~ *

= a |

— os |

— os

— = |

-

— = /

ae ee

9. Is receptive to constructive criticism.

_ =

Adheres to the Code of Ethics and Standard Prac-

tices of the Teaching Profession.

Adheres to district policies and procedures.

Promotes good school community and parent

relationships.

Relates well to the total staff, and shares materials

and experiences.

Maintains professional involvement and improve-

ment.

Is accurate and prompt in attention to records and

reports.

Performs routine duties in a professional manner.

Is willing to try new ideas.

A-37

Comments: EXHIBIT “K”

TEACHER EVALUATION

Please grade each item | to 5:

1. Superior 4. Needs Improvement

2. Commendable 5. Unsatisfactory

3. Acceptable NA - Not Applicable

A. Professional Personal Qualities

mm

<

&

=

s

(List suggestions for improvement) (Rating)

g

_._. 1. Alertness.

3. 2. ~Enthusiasm.

3. 3. Initiative and industry.

. 2. 4. Positive attitude.

_3._ 5. Tact, diplomacy and courtesy.

2. 6. Self-confidence.

/s/_D.R. Luthringer_ {s/ Mrs, Etta Lee Kellner __ ———*

Evaluator’s signature Teacher's Signature ms we : —_ een good attend aout

Kames City Elem, Art - grades 3-4 -5 i. 10. Good voice quality and diction.

—_— Teaching . cite aiius 2 poe art yt 0

om ° te

— __3__ 13. Ability to adjust to new programs and ideas.

2-19-74 2-19-74 25 4 14. Good judgment.

Date Date Years Experience a. 15. Cheerfulness.

B. Professional Performance

. Gives evidence of knowledge of subject matter.

-

3 — 2. Gives evidence of ability to teach the subject.

_3__ 3. Develops effective plans.

A-38 A-39

= '

ii &

~tinnn @

= a

a. 8,

=o

Demonstrates effective use of class time.

Uses effectively available resources, teacher aids and

consultative services.

Recognizes individual differences.

Motivates pupils.

Understands and likes children.

Maintains effective class management.

_.2__ 10. Gives attention to health and safety.

4 11. Maintains a room conducive to learning.

.._&. 12. Uses supplies and equipment economically.

__3_. 13. Uses variety and creativeness in the instructional

program.

Teacher Evaluation (Continued)

C. Professional Responsibility

- |

= ey |

a |

= SS |

Adheres to the Code of Ethics and Standard Prac-

tices of the Teaching Profession.

Adheres to district policies and procedures.

Promotes good school community and parent

relationships.

Relates well to the total staff, and shares materials

and experiences.

Maintains professional involvement and improve-

ment.

Is accurate and prompt in attention to records and

reports.

. Performs routine duties in a professional manner.

Is willing to try new ideas.

Is receptive to constructive criticism.

A-40

° .

ee

(List suggestions for mprovement)

/s/_D. R. Luthringer _ [s/_ Mrs. Etta Lee Kellner __

Evaluator’s signature Teacher’s Signature

City Elem. _ Fourth Grade

School Teaching Assignment (Gr. or

Sub.)

1-30-75 - 30-7 26 yrs.

Date Date Years Experience

A-41

EXHIBIT “L”

KARNES CITY INDEPENDENT SCHOOL DISTRICT

TEACHER’S CONTRACT

DATE __March 18, 1974

. -Mrs. Etta Kellner

You have been elected to teach in the Karnes City Independent

School District during the 19.74 - 19_Z5 school year for the

annual sum of state salary _ 511.380. plus __$288 to be

paid in twelve equal installments, subject to the following

conditions: that you meet the qualification requirements of

the Texas Education Agency and the standards of accreditation;

that you comply with the policies of the Board of Trustees of

the Karnes City Independent School District: that you are

subject to assignments or re-assignment by the Superintendent

of Schools. Teachers will be consulted as soon as possible of

any change of assignment made after teacher signs his contract.

Teacher will have 10 days to accept change of assignment or

reject the contract. Every effort will be made to complete these

changes of assignment by July Ist.

You further agree to teach to the best of your skill and ability

and to be governed by and discharge the duties required by the

laws of this State and such rules and regulations as may be

made by the Board of Trustees, the superintendent. and/or the

Principal of your school.

SPECIAL CONDITIONS:

A-42

This contract will be effective for _1 year (s) as long as you do

efficient work and retain a good moral character. It is agreed

that you will not ask for a release in order to accept work

elsewhere after July 1, 19.74.

To validate this contract, please sign and return the original

copy to the Superintendent's office, Karnes City Independent

School District, within ten (10) days. (If extension of time is

needed, contact the Superintendent.)

/s/ M. E. Asman

M. E. Asman, Superintendent

Accepted: _/s/_ Mrs. Etta Kellner

Teacher

A-43

[1] . [1]

EXHIBIT “M”

[1] IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MS. ETTA LEE KELLNER

Vv. SA-75-CA-187

KARNES CITY INDEPENDENT

SCHOOL DISTRICT, ET AL.

ee ee

ORDER

FILED: February 12, 1976

On this the __l1th_ day of February, 1976, came on to be

considered the Motion to Dismiss for Failure to State a Claim

filed by the defendants in the above styled and numbered cause

pursuant to Rule 12(b) (6) of the Federal Rules of Civil Proce-

dure. The Order of this Court entered on November 14, 1975

converted this Motion under Rule 12 into a plea for Summary

Judgment and set out time lines for the parties to submit to

the Court any and all evidence which they wished the Court

to consider under Rule 56, Federal Rules of Civil Procedure.

The Court finds that these time lines are long since past and

that all parties have had ample opportunity in which to submit

their evidence in anticipation of a Rule 56 ruling.

The Court has reviewed the briefs, exhibits and pleadings of

the parties together with the complete record and file of the

case and is of the opinion and so finds that the Motion is

meritorious and should be granted.

A44

{1} [2]

During the 1974-1975 school year the plaintiff was employed

as a teacher by the Karnes City Independent School District.

In the spring of 1975, the plaintiff was informed that the

Superintendent of Schools had recommended that her one year

contract not be renewed. After two meetings with the Board of

Trustees, the Board voted not to renew the plaintiff's

[2] contract allegedly on the grounds, among others, that she

exercised poor judgment and poor class management. (Plain-

tiff's Complaint, page 3)

Plaintiff subsequently filed this action alleging violations of

her rights by the defendants under 42 U.S.C., Sec. 1983, and

the First and Fourteenth Amendments to the United States

Constitution. Jurisdiction arises under 28 U.S.C., Sec. 1331.-1/

Although jurisdiction does exist under 28 U.S.C., Sec. 1331,

this Court is of the opinion that the provisions of 42 U.S.C.,

Sec. 1983, giving plaintiff a remedy do not apply to all the

defendants named in this action. The authority that a School

District is not a “person” within the meaning of Section 1983

is overwhelming. City of Kenosh v. Bruno, 412 U.S. 507, 513-

514; Ingram v. Wright, Slip Opinion 73-2078 (Jan. 8, 1976)

(en banc). It is clear, therefore, that the defendant, Karnes City

Independent School District, is not a person subject to Sec.

1983 and it is hereby ORDERED that the Karnes City Indepen-

dent School District be, and it is hereby, dismissed as a party in

this case because of the lack of subject matter jurisdiction.

Furthermore, it is uncontroverted from the pleadings and

the exhibits that the only involvement of the defendant, Mrs.

Mary Ahrens, with the determination of the School Board to

[2] - [3]

not offer plaintiff a contract for the 1975-1976 school year

was that of a recording secretary to the Board and, as such,

she did not participate or contribute in any way to the Board’s

determination. Obviously, she had no active role in the alleged

deprivation of the plaintiffs rights and it is, therefore,

{3} ORDERED that the defendant, Mrs. Mary Ahrens, be

dismissed from this cause as the plaintiff's complaint fails to

State a claim against her upon which relief can be granted.

With regard to Messrs. Luthringer and Asman; the Court

finds that even though they did not actively participate in

the vote of the School Board their input into the teacher

election process through recommendations to the Board would

demand that they be held to the same degree of accountability

as the individual members of the Board. (See Section IV G of

the Policies and Regulations of the Board of Trustees of the

Karnes City Independent School District requiring the recom-

mendation of both the principal and superintendent before a

teacher may be re-elected by the Board.) Therefore, the Motion

to Dismiss as to them is DENIED.

In proceeding to a determination of the case under Rule 56,

the hereinabove dismissed defendants are included in the

Court’s consideration and any ruling under Rule 56 shall apply

to them as well.

The initial claim of the plaintiff is that she has acquired a

“property” interest in her continued employment and that

this expectation goes beyond the mere subjective. In failing to

renew her year to year contract, it is argued that the Board of

Trustees has abrogated this “property” interest and violated the

plaintiff's rights to procedural due process.

Plaintiff concedes, and the contract she accepted clearly

demonstrates, that she had no formal tenure such as would

entitle her to continued employment in the absence of suffi-

A-46

[3] [4]

cient cause.

[4] “Thus the terms of the [plaintiff's] appoint-

ment secured absolutely no interest in re-employment

for the next year. They supported absolutely no

possible claim of entitlement to re-employment. Nor,

significantly , was there any state statute or University

rule or policy that secured his interest in re-

employment or that created any legitimate claim to

it. In these circumstances, the [plaintiff] surely had

an abstract concern in being rehired, but he did not

have a property interest sufficient to require the

University authorities to give him a hearing when

they declined to renew his contract of employment.”

Board of Regents v. Roth, 408 U.S. 564, 578 (1972)

(Emphasis in the original)

Realizing that a subjective expectation of continued employ-

ment would be an insufficient property interest to invoke the

protections of the Fourteenth Amendment, the plaintiff has

alleged that “pursuant to the rules and policies practiced and

promulgated by the defendant district . . . all teachers in that

district can expect to be renewed for employment absent a

showing of good and sufficient cause.” (Plaintiff's Complaint,

page 3.) This allegation coincidentally recognizes the holding

in Perry v. Sindermann, 408 U.S. 593 (1972), in which the

Supreme Court held that even in the absence of formal tenure,

a teacher might be able to establish a property interest in re-

employment cognizable under the Fourteenth Amendment.

“A teacher, like the [plaintiff], who has held his

position for a number of years, might be able to show

from the circumstances of this service - and from

other relevant facts - that he has a legitimate claim of

entitlement to job tenure. Just as this Court has

found there to be a ‘common law of a particular

A-47

[4]. [5]

industry or of a particular plant’ that may supple-

ment a collective-bargaining agreement, Steelworkers

v. Warrior & Gulf Co., 363 U.S. 574, 579, so there

may be an unwritten ‘common law’ in a particular

university that certain employees shall have the

equivalent of tenure.” 408 U.S. at 603.

Superficially, therefore, plaintiff would seem to have alleged

a claim sufficient to survive a Motion to Dismiss under Rule

12 (b) (6).

The difficulty is that even “proof of such a property interest

would not . . . entitle [the plaintiff] to reinstatement. But such

proof would obligate college officials to grant a [5] hearing

at [plaintiff's] request, where [plaintiff] could be informed of

the grounds for . . . nonretention and challenge their suffi-

ciency.” Perry, supra, at 603. Plaintiff, however, in the case at

hand, has failed to even allege that she has ever been denied

such a hearing or that she wants one. -2/ Rather, the plaintiff

demands immediate reinstatement, a form of relief the Court

could not provide even if the allegations of the Complaint were

proven. It follows that the plaintiff has failed to state a claim

upon which relief can be granted. VanDe Vate v. Boling and

the University of Tennessee, 379 F. Supp. 925, 929 (D.C. Tenn.

1974); Jones v. Hopper, 410 F. 2d 1323 (10th Cir., 1969);

Orr v. Trinter, 444 F. 2d 128 (6th Cir., 1971). It is elemental

that before a plaintiff can succeed he must establish a prima

facie case of discrimination on impermissible grounds. The

plaintiff hes failed to do so in the case at hand.

2/ According to the uncontroverted evidence submitted by defendants,

it is uncontested that plaintiff has as yet failed to accept an offer

of the Board for a further hearing with regard to the non-renewal

of her contract.

A-48

(S] [6]

As is the case with “property” interests, the meaning of

“liberty” under the Fourteenth Amendment has not infrequent-

ly been elusive. The word has been molded and shaped in an

increasing number of judicial opinions. however, to the point

where it has a recognizable meaning under the law.

Plaintiff has alleged that a favorable reputation is such a

liberty protected by the Fourteenth Ainendment and that the

defendants have wrongly deprived her of such a reputation by

terminating her employment and for other unnamed “constitu-

tionally impermissible reasons". (Plaintiff's Complaint, page 4)

It is true that the Courts have recognized that one’s reputation

can, [6] _ in certain circumstances, be a “liberty” subject to

the full protection of due process. See Roth, supra. But the

standard which the Court must apply in determining whether

one has been deprived of this liberty is the degree to which

one’s reputation has been damaged. Stated in the negative, in

an instance where the Court found no deprivation of liberty,

the Supreme Court has concluded:

“There might be cases in which a State refused to

re-employ a person under such circumstances that

interests in liberty would be implicated. But this is

not such a case.

“The State, in declining to rehire the [plaintiff] ,

did not make any charge against him that might

seriously damage his standing and associations in his

community. It did not base the nonrenewal of his

contract on a charge, for example, that he had been

guilty of dishonesty, or immorality. Had it done so,

this would be a different case.” Roth, supra, at 573.

Like Roth, the plaintiff has, as a matter of law, failed to demon-

strate any damage to her reputation beyond the fact that her

contract was not renewed.

A-49

[6] [7]

The only facts alleged in support of the alleged deprivation of

the “liberty” are some of the reasons stated by the Board of

Trustees in support of their decision not to renew the plaintiff's

contract, namely “poor judgment” and “poor class manage-

ment”. These alleged aspersions on the plaintiff's ability or

performance as a teacher are no more injurious to the plaintiff's

reputation than the fact of non-renewal itself and clearly do

not amount to a deprivation of liberty within the meaning of

the Fourteenth Amendment, but rather are direct indications

that the Board’s decision not to renew the contract was based

on good cause and not malevolence or caprice. The veracity of

the Board's reasoning has not been questioned by the plaintiff

or in any way brought into issue in this case and [7] on the

face of the allegations alone the Court finds that good cause

does exist for not renewing the plaintiff's contract.

While the Complaint also states that the “action is brought

pursuant to the . . . First Amendment... ” (Plaintiff's Com-

plaint, page 1) no facts or cause of action are advanced in

support of this statement.

For the reasons heretofore stated, the Motion to Dismiss for

Failure to State a Claim Upon Which Relief Can be Granted,

as altered by the Court’s Order of November 14, 1975 con-

verting it into a Motion for Summary Judgment, is hereby in all

things GRANTED and Judgment is entered with costs for the

defendants, Karnes City Independent School District, M. E.

Asman, D. R. Luthringer, James McClane, Mary Ahrens, Marvin

Witte, Alois Linhart, Hilmer Wagener and Kenneth Matthews.

ORDERED AND ENTERED this Lith day of February,

1976.

/s/ John H. Wood, Jr.

JOHN H. WOOD, JR.

UNITED STATES DISTRICT JUDGE

A-50

[42] [42]

EXHIBIT “N”

[42] IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MS. ETTA LEE KELLNER )

Plaintiff )

VS. ) CIVIL ACTION NO.

SA-75-CA-187

KARNES CITY INDEPENDENT )

SCHOOL DISTRICT, ET AL

)

Defendants

)

ORDER

FILED: March 2, 1976

On this _2lst. day of March, 1976, came on for considera-

tion the plaintiff's motion to submit copies of the transcripts of

two school board hearings held prior to the filing of the above-

styled and numbered cause.

It appearing to the Court that said motion is unmeritorious

and that good cause is not stated therefore, and further that the

plaintiff has waived the right to submit any further evidence in

regard to the defendants’ motion for summary judgment, which

was granted by this Court by Order dated February 11, 1976,

the same is hereby, in all things, DENTED.

A-S1

[42] [42]

ENTERED on this the _2lst day of March, 1976, at San EXHIBIT “O”

Antonio, Texas.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

/s/ John H. Wood, Jr.

JOHN H. WOOD, JR. oo lis

UNITED STATES DISTRICT JUDGE NO. 76-2131

Summary Calendar *

MS. ETTA LEE KELLNER,

Plaintiff-Appellant,

versus

KARNES CITY INDEPENDENT SCHOOL DISTRICT,

ET AL.,

Defendants-Appellees.

From the United States District Court

for the Western District of Texas

(October 6, 1976)

Before GODBOLD, DYER and HILL, Circuit Judges.

PER CURIAM:

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of

New York, et al., 5 Cir., 1970, 431 F. 2d 409, Part I.

A-52 A-53

After careful and exhaustive review of the record and of the

contentions of the parties, we AFFIRM on the basis of the

memorandum opinion and order of the trial court filed Febru-

ary 12, 1976.

AFFIRMED.

[115] {115}

EXHIBIT “P”

{115} JUDGMENT Rule 56

Rule 56.

SUMMARY JUDGMENT

(a) For Claimant. A party seeking to recover upon a claim,

counterclaim, or cross-claim or to obtain a declaratory judg-

ment may, at any time after the expiration of 20 days from the

commencement of the action or after service of a motion for

summary judgment by the adverse party, move with or without

supporting affidavits for a summary judgment in his favor upon

all or any part thereof.

(b) For Defending Party. A party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory judg-

ment is sought may, at any time, move with or without support-

ing affidavits for a summary judgment in his favor as to all or

any part thereof.

(c) Motion and Proceedings Thereon. The motion shall be

served at least 10 days before the time fixed for the hearing.

The adverse party prior to the day of hearing may serve oppos-

ing affidavits. The judgment sought shall be rendered forthwith

if the pleadings, depositions, answers to interrogatories, and ad-

missions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a ;udgment as a matter of law. A

summary judgment, interlocutory in character, may be rendered

on the issue of liability alone although there is a genuine issue

as to the amount of damages.

A-SS

{115] [116]

(d) Case Not Fully Adjudicated on Motion. If on motion

under this rule judgment is not rendered upon the whole case or

for all the relief asked and a trial is necessary, the court at the

hearing of the motion, by examining the pleadings and the evi-

dence before it and by insrrogating counsel, shall if practicable

ascertain what material facts exist without substantial contro-

versy and what material facts are actually and in good faith

controverted. It shall thereupon make an order specifying the

facts that appear without substantial controversy, including the

extent to which the amount of damages or other relief is not in

controversy, and directing such further proceedings in the

action as are just. Upon the trial of the action the facts so

specified shall be deemed established, and the trial shall be

conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Re-

quired. Supporting and opposing affidavits shall be made

on [116] personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated

therein. Sworn or certified copies of all papers or parts thereof

referred to in an affidavit shall be attached thereto or served

therewith. The court may permit affidavits to be supplemented

or opposed by depositions, answers to interrogatories, or

further affidavits. When a motion for summary judgment is

made and supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of his plead-

ing, but his response, by affidavits or as otherwise provided in

this rule, must set forth specific facts showing that there is a

genuine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be entered against him.

(f) When Affidavits are Unavailable. Should it appear from

the affidavits of a party opposing the motion that he cannot

for reasons stated present by affidavit facts essential to justify

his opposition, the court may refuse the application for judg-

[116] [116]

ment or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be had or

may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the

satisfaction of the court at any time that any of the affidavits

presented pursuant to this rule are presented in bad faith or

solely for the purpose of delay, the court shall forthwith order

the party employing them to pay to the other party the amount

of the reasonable expenses which the filing of the affidavits

caused him to incur, including reasonable attorney’s fees, and

any offending party or attorney may be adjudged guilty of con-

tempt.

As Ae Dec. 27, 1946, eff. March 19, 1948; Jan. 21, 1963,

eff. July 1, 1963.

1963 Amendment

Inserted the words “answers to interrogatories”’ in the second sentence

of subdivision (c).

Added to subdivision (e) the last two sentences relating to motion for

summary judgment.

Complete Judicial Constructions, see Title 28, U.S.C.A.

A-57