Petition — Board of Education v. Vail

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ALEXANDER L. STEVAS,

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In The

Supreme Court of the United States

OCTOBER TERM, 1983

BOARD OF EDUCATION OF PARIS UNION

SCHOOL DISTRICT NO. 95, TERRANCE C. PARKS,

CHARLES R. FOX and BERNIE RINEHART,

Petitioners,

JESSE A. VAIL,

Respondent

O-—

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

THOMAS R. MILLER

MILLER, TRACY & BRAUN

LAW OFFICES, P.C

316 S. Charter

Monticello, IL 61856

Counsel for Petitioners

KRAMER PRINTING COMPANY Monticello IL 61856

QUESTIONS PRESENTED

1. Whether a probationary public school teacher may

ever have a property interest in continued employment pro-

tected by the Fourteenth Amendment to the Constitution of

the United States, when there exists a statutory tenure sys-

tem.

2. Whether the breach ci a probationary public school

teacher's employment contract is a Constitutional tort litiga-

ble in Federal Court under 42 U.S.C. § 1983.

TABLE OF CONTENTS

Subject Index

Pages

ES SE 1

bee e 2

Constitutional and Statutory Provisions Involved ..... 2

Eo 2

Reasons for Granting the Writ ................... 5

EE a 13

Appendix Index

Exhibit A. Opinion of the United States Court of

Appeals for the Seventh Circuit....... App.1

Exhibit B. Opinion of the United States District Court

for the Central District of Illinois, Danville

ES a App.43

Exhibit C. Order of the United States District Court for

the Central District of Illinois, Danville

Division, Re: Defendants’ Motion to

Dismiss for Lack of Jurisdiction....... App.50

Exhibit D. Defendants’ Motion to Dismiss for Lack of

SS App.53

Exhibit E. Amendment 14, Section 1, Constitution of

Eee App.55

TABLE OF CONTENTS -— Continued

Pages

42 United States Code, Section 1983 .. App.55

Illinois Revised Statutes

Chapter 122, Section 24-11 BN App.56

Illinois Revised Statutes

Chapter 122, Section 24-12 ......... App.58

TABLE OF AUTHORITIES

Cases

Pages

Bessiler v. Board of Education of Chartered School Dis-

trict No. 150 of Peoria County, Illinois, 43 \\_App.3d

322, 356 N.E.2d 1253 (1976), modified 69 IIl.2d 191,

370 W.E20 1060: (1077) 0.10.5 beech... pea ie

Bio-Medical Laboratories, Inc. v. Trainor, 68 \I|.2d 540.

370 N.E.2d 223 (1977) . ee ads ore ake 11

Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48

Boye Oe. ee CTE Sones §

Board of Regents v. Roth. 408 US. 564, 92 S.Ct. 2701,

33 L.Ed.2d 548 (1972) . WAR civ Oe k oeee ee

City of Chicago v. Fair Employment Practices Commis-

sion, 65 Ill.2d 108, 357 NE 2d 1154 (1976)...... 11

TABLE OF AUTHORITIES — Continued

Pages

lilinois Education Association Local Community High

School District 218 v. Board of Education of School

District 218, Cook County, 62 \Il.2d 127, 340 N.E.2d

ye GN KS tot tat Ep ai dst 22) Da art BY aE a

Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70

L.£0:20 13 (1981) (per Curiam) ................ 5

Johnson v. Board of Education of Decatur School

District No. 61, 85 \\l.2d 338, 423 N.E.2d 903

(7084K 2 oS at ne ce ae Ree

Leis v. Flynt, 439 U.S. 438, 99 S.Ct.698, 58 L.Ed 2d 717,

reh. den. 441 U.S. 956, 99 S.Ct. 2185, 60 L-Ed.2d

1060: (1979) (00F CLUMIGIM) . oe ees Ss

Northern Illinois Automobile Wreckers and Rebuilders

Association v. Dixon, 75 \ll.2d 53, 387 N.E.2d 320

(1979), cert. den. 444 US. 844, 100 S.Ct. 87, 62

Ee Si CUNO ood 5 Se min wale hoe bale nes 11

Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33

yp ee AER ee Bee ara earrce i rem Mp 5

Ryan v. Aurora City Board of Education, 540 F.2d 222

4, gee ey aor Fab ach tel eeark seria ate canna Gta re A i

Vail v. Board of Education of Paris Union School District

No. 95, No. 82-1202, a ta (7th Cir., April 19,

MS aie aha oes Sie ae ntnad A ee ree EN ip

TABLE OF AUTHORITIES ~ Continued

Pages

Constitutional Provisions

and Statutes

Illinois Revised Statutes, Chapter 122,

Section 10-238 .

Illinois Revised Statutes, Chapter 122.

Section 10-23.8a . baa

Illinois Revised Statutes, Chapter 122,

Section 24-11 eigen «

Pages

Illinois Revised Statutes, Chapter 122, Section

24-12

United States Code, Chapter 28,

Section 1254(1)

United States Code, Chapter 28.

Section 1343(3) .

United States Code, Chapter 42.

Section 1963 ...........

United States Constitution, Fourteenth

Amendment, Section 1

No,___

In The

Supreme Court of the United States

OCTOBER TERM, 1983

: a

BOARD OF EDUCATION OF PARIS UNION

SCHOOL DISTRICT NO. 95, TERRANCE C. PARKS,

CHARLES R. FOX and BERNIE RINEHART,

Petitioners,

JESSE A. VAIL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Board of Education of Paris Union School Dis-

trict No. 95, Terrance C. Parks, Charles R. Fox and Bernie

Rinehart, respectfully pray that a Writ of Certiorari issue to re-

view the judgment and opinion of the United States Court of

Appeals for the Seventh Circuit entered in this case on April

19, 1983.

OPINIONS BELOW

The opinions of the United States Court of Appeals for the

Seventh Circuit and the United States District Court for the

Central District of Illinois, Danville Division, are included in

the Appendix as Exhibits A and B, respectively

JURISDICTION

The respondent brought his action for declaratory and in-

junctive relief and damages under the provisions of 42

U.S.C. §1983, claiming that the petitioners, acting under

color of state law, terminated the respondent's contract of

employment without cause, without notice and without hear-

ing in violation of respondent's right to due process of law

under the Fourteenth Amendment. The District Court found

jurisdiction vested under the provisions of 28 USC

§ 1343(3). Over petitioners’ Motion to Dismiss for lack of

jurisdiction, the District Court conducted a bench trial and

entered its Findings of Fact, Conclusions of Law, Memoran-

dum, Opinion and Final Order on June 13, 1982

Timely appeal was perfected to the United States Court

of Appeals for the Seventh Circuit by the petitioners. On

April 19, 1983, a split Court of Appeals affirmed the District

Court by a two to one decision.

Jurisdiction of the United States Supreme Court to review

the decision of the Court of Appeals by Petition for Writ of

Certiorari is conferred by 28 U.S.C. §1254(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Reievant portions, of the Fourteenth Amendment to the

Constituion of the United States, 42 USC. §1983 and the

Illinois School Code, c. 122, Ill. Rev.Stat., are set forth in the

Appendix as Exhibit E.

STATEMENT OF THE CASE

The petitioners are the Board of Education of Paris Union

School District No. 95 (Board), Paris, Illinois, and three indi-

vidual members thereof. The respondent (Vail) is a public

school teacher certified under the laws of the State of Il-

linois

Illinois has a statutory tenure system found in Sections 24-

11 and 24-12 of The Illinois School Code, c. 122, Ill. Rev. Stat.

(1981). Under this statutory scheme, a public school

teacher can acquire tenure only after two years of full-time,

consecutive, year-to-year employment. c. 122, §24-11,

Ill. Rev.Stat. (1981). Having acquired tenure, a teacher is en-

titled to continued employment absent dismissal for cause

A teacher without tenure is, in essence, an at will employee

of the school board under Illinois law.

Procedural protection afforded an Illinois public school

teacher before he is discharged corresponds to his job se-

curity. As a matter of statutory law, a tenured teacher cannot

be discharged except for cause upon specific charges and

pursuant to certain procedures. See Section 24-12 of the Il-

linois School Code, App. 58-61.

In contrast to the aforequoted protections afforded to the

tenured teacher, the School Code provides relatively little

protection for a nontenured teacher who simply is not

reemployed for the next year. A nontenured teacher com-

pleting the first year of probationary service, only need be

informed at least sixty (60) days before the end of the school

term of his nonretention, and a teacher completing the sec-

ond year of probationary service is additionally entitled to

know the reasons for the nonrenewal. Seciion 24-11 of the

Illinois School Code provides, inter alia:

Any teacher who has been employed in any district

as a full-time teacher for a probationary period of 2

consecutive school terms shall enter upon contractual

continued service unless given written notice of dismis-

sal stating the specific reason therefor, by registered

mail by the employing board at least 60 days before

the end of such period. For the purpose of determining

contractual continued service, the first probationary

year shall be any full time employment from a date

before November 1 through the end of the school

year

Any full-time teacher who is completing the first year

of the probationary period described in the preceding

paragraph, or any teacher employed on a full-time

basis not later than January 1 of the school term, shall

receive written notice from the employing board ai least

60 days before the end of any school term whether or

not he will be re-employed for the following school

term.

On June 15, 1980, the search committee for the petitioner

Board traveled to Joliet, Illinois, to interview the respondent

for a job as athletic director and football coach. Respondent

was at that time employed as supervisor of recreation and

physical education for the Stateville Correctional Center in

Joliet. While discussing possible employment, respondent

expressed concern regarding the length of the proposed

contract. The committee told respondent that the length of

the contract would be determined by the Board.

On June 24, 1980, the petitioner Board met in special ses-

sion to consider hiring respondent. The Board informed re-

spondent that under the Illinois School Code it could offer

him a contract of only one year. However, according to the

findings of fact, it was the concensus of the Board that it

would orally assure respondent that his contract would be

renewed at the end of the first year. When Dr. James Cherry,

the Superintendent, conveyed the offer and assurance to re-

spondent, respondent accepted, traveled to Paris to exe-

cute the one year written contract and subsequently as-

sumed the duties of athletic director and football coach.

On March 2, 1981, during respondent's first year of em-

ployment, the Board met in public session; and pursuant to,

and in full compliance with the statutory provisions outlined

in Section 24-11 of the Illinois School Code, voted not to

renew respondent's contract for the following year. No hear-

ing or reasons for the nonrenewal were given to respondent,

a procedure which complies with the statutory requirements

of School Code Section 24-11.

The respondent then brought this action in Federal District

Court, alleging that the decision not to rehire him infringed

his Fourteenth Amendment rights. He attacked the decision

of the Board both in substance and procedure. Finding that

the respondent had an expectation of continued employ-

ment for a second year, the District Court entered judgment

for the respondent on procedural due process grounds be-

cause of the failure of the Board to give the respondent

notice of the reasons for nonretention and an opportunity for

a hearing. The District Court awarded respondent

$19,850.99 in stipulated damages. The Court of Appeals,

with one judge dissenting, affirmed the District Court's deci-

sion.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals for the Seventh

Circuit is inconsistent with the Supeme Court’s deci-

sions in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct.

2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann,

408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

In 1972, this Court decided the companion cases of

Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33

L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593,

92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Since those deci-

sions, the Court has considered other ‘property interest”

questions, but has not decided any case specifically involv-

ing a probationary public school teacher's claim to Four-

teenth Amendment property interest protection within the

backdrop of a statutorily imposed job tenure system. See

Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48

L.Ed.2d 684 (1976); Jago v. Van Curen, 454 U.S. 14, 18-19,

102 S.Ct. 31, 70, L.Ed.2d 13 (1981) (per curiam); and Leis

v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698, 58 L.Ed.2d 717,

reh. den. 441 US. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060

(1979)(per curiam).

In its broadest sense, Aoth held that if a state college

teacher had no right under state law to continued employ-

ment, he had no property right under the due process

clause. Similarly, although primarily addressing the issue of

de facto tenure, the Court in Sindermann reiterated the sig-

nificance that a statutory tenure system has when analyzing

a teacher's claim to procedural due process protection.

The majority opinion of the Court of Appeals in the instant

case appears to rely primarily on Sindermann, while Judge

Eschbach, in his concurring opinion, addresses the applica-

bility of Roth at length. On the other hand, Judge Posner,

in his vigorous and lengthy dissent, concludes that ‘[t]he

Supreme Court has not decided the question in this case.”

Vail v. Board of Education of Paris Union School District No.

95, No. 82-1202, Slip Op. at 41 (7th Cir., April 19, 1983).

Judge Eschbach opines that if a probationary employee

can prove the existence of an implied contract right to con-

tinued employment under state law, he has satisfied the re-

quirements set forth in Roth to establish a protectible prop-

erty interest under the Fourteenth Amendment. Vail v. Board

of Education of Paris Union School District No. 95, No. 82-

1202, Slip Op. at 15 (7th Cir., April 19, 1983). Likewise, the

majority opinion reasons that once the existence of an im-

plied contract is established by a probationary teacher, a

protectible property interest is created inspite of a statutory

tenure scheme. Slip Op. at 6.

Petitioners contend that Judge Eschbach has misread

Roth, and the majority opinion has chosen to ignore that part

of the Sindermann decision which specifically addresses

the role that a statutory tenure system plays when assessing

a probationary teacher's claim to a protectible property in-

terest in continued employment.

Petitioners agree with Judge Posner that the Sindermann

Court attached special meaning to “tenure” when analyzing

a due process claim. The Sindermann Court stated the im-

portance of tenure when it said:

[w]e do not now hold that the respondent has any

such legitimate claim of entitlement to job tenure. For

‘[p]roperty interests. . .are not created by the Constitu-

tion. Rather, they are created and their dimensions are

defined by existing rules or understandings that stem

from an independent source such as state law... .’

Board of Regents v. Roth, supra, 408 U.S, at 577, 92

S.Ct., at 2709. /f it is the law of Texas that a teacher

in the respondent's position has no contractual or other

claim to job tenure, the respondent's claim would be

defeated. (Emphasis added) 408 U.S. at 602, n. 7, 92

S.Ct. at 2700.

Sindermann thus holds that under a statutory tenure system

a probationary employee, or otherwise nontenured teacher,

can have no exception of continued employment since the

state has seen fit to restrict such a right to tenured employ-

ees. In other words, a probationary teacher's implied con-

trac’ right to continued employment can never rise to the

levei of a property interest protected by the Fourteenth

Amendment when viewed within the framework of a statut-

ory tenure system. To hold otherwise is an affront to the

plain language in Sindermann.

The decision of the Court of Appeals for the Seventh

Circuit is in conflict with at least one other federal circuit

court.

Neither the majority nor concurring opinion speak to or at-

tempt to distinguish Ryan v. Aurora City Board of Education,

540 F.2d 222, decided in 1976 by their brethren from the

Sixth Circuit. The Petitioners contend that Ayan is virtually

indistinguishable from the instant case with regard to the im-

plied promises considered in each and the impact of those

promises on tenure statute proscriptions.

In Ryan, the plaintiffs, like Vail, were nontenured teachers

under a statutory tenure system which conferred tenure

rights upon such teachers only after a period of probatio-

nary employment. The plaintiffs in Ryan argued that certain

regulations adopted by the board of education contained a

Clearly “implied promise” under Roth to continued employ-

ment, thereby creating a property interest protectible by the

Constitution. The basis of the “implied promise” in Ryan is

the only distinguishing fact from Vail; and that distinction is

hollow in light of the fact that both “implied promises” were

the creation of the employing boards of education. In other

words, the implied promise occasioned by a concensus

opinion of the Board in Vail is no different than the implied

promise created by rule or regulation in Ryan.

The Ayan Court, relying on that part of the Sindermann

opinion cited above, but not addressed by the majority opin-

ion in the case at bar, concluded ‘that a nontenured teacher

has no ‘expectancy’ of continued employed whatever may

be the promises of the institution where there exists a statut-

ory tenure system’. (Emphasis added). The Court stated at

227 that “[t]his conclusion is supported by the Suoreme

Court's decision in Sinderman.”’

There is no federal interest in this case under 42

U.S.C. §1983. Assuming arguendo that respondent had

an enforceable two (2) year contract under state law, he

had no litigable property right under the due process

clause simply because he possessed such a contract

right.

This Court has yet to equate a nontenured teacher's con-

tract right to employment with a property right secured by

the Constitution

Breach of contract claims have traditionally involved state

causes of action, and there is no reason to believe that a

person claiming a breach of an implied contract such as re-

spondent does not have an adequate remedy at law in a

state court. By elevating a right of employment in an implied

contract to the status of a property right protected by the

Fourteenth Amendment, the Court of Appeals has opened

the floodgates to a new wave of litigation under 42 U.S.C

§1983. Many nontenured teachers who are subject to state

Statutory tenure systems will now be encouraged to bring

suit in federal courts arguing that they were promised more

than one year of employment. Since in Illinois, like most

other states, an implied contract can be imputed from a

meeting of the minds, nontenured teachers will be able to

argue the existence of oral agreements with schoo! boards

or their agents for multi-year employment. This result ob-

viates the distinction between tenured and nontenured em-

ployees, and defeats the legislative intent to create a period

of probationary employment before tenure attaches

Illinois courts have held that the probationary period is a

statutorily mandatory term, and a board may not alter the

probationary period. Bessler v. Board of Education, 43

IlLApp.3d 322, 370, 356 N.E.2d 1253 (1976), modified 69

Ill.2d 191, 370 N.E.2d 1050 (1977).

If the decision of the Court of Appeals is allowed to stand

untested, other lower courts shall be encouraged to read

the Court's language in Sinderman too broadly allowing for

an unnecessary amount of litigation in the federal courts, en-

croaching on the domain of the state courts. It may also sig-

nal the end of many state statutory tenure provisions by ob-

viating or at least diluting the distinction between probatio-

nary and tenured employment status

The Court of Appeals’ interpretation of Section 24-11

of the illinois School Code, c. 122, ili.Rev.Stat.. is unten-

able in view of the Illinois Supreme Court's interpreta-

tion and construction of Section 24-11.

lt is undisputed that Constitutionally protected property

rights must find their source from state law. Board of Re-

gents v. Roth, 408 U.S. at 577, 92 S.Ct. at 270, 33 L-Ed.2d

548 (1972). In the absence of any authoritative interpretation

of state statutes by a state court a federal court is bound

to apply rules of construction which are consistent with

those pronounced by a state's highest court when interpret-

ing a state statute. Board of Regents v. Roth, 408 US. at

604, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Court of Ap-

peals simply has not done this in the case at bar.

Assuming arguendo that an implied two year contract is

found between the petitioners and respondent, petitioners

strongly contend that such a contract is unenforceable

under Illinois law, and, therefore, not sufficient to constitute

a property interest.

The Illinois legislative plan as to tenure and public school

teachers is plain. New teachers in a school district are sub-

ject to a two year probationary period consisting of two sep-

arate one-year contracts before they may attain tenure. c.

122, §24-11, Ill.Rev.Stat. (1981). A school district may

choose not to rehire a first-year teacher merely by giving

notice of nonrenewal within the statutory period. A second-

year teacher must be given timely notice and the reasons

for nonrenewal. c. 122, §24-11, Ill.Rev.Stat. (1981). For the

Court of Appeals to find as a matter of law that the respon-

dent, as a first-year probationary teacher, could have prop-

erly contracted with the petitioners for more than one year

is inconsistent with not only the spirit, but also the clear

meaning of the statute.

Although the Illinois Supreme Court has never decided

the issue of the legality of the two year probationary con-

tract, the petitioners contend that the results would be inap-

posite to those of the Court of Appeals At Page 7 of its opin-

ion, the Court of Appeals holds that ‘[t]here is simply no

provision of the Code placing an express statutory 1 year

time limit on contracts to be offered to probationary

teachers’ Having so concluded. the Court of Appeals

makes short work of petitioners’ argument that Section 24-

11 of the Illinois School Code precludes a two-year prob-

ationary contract.

While the Court of Appeals found no express statutory

prohibition against two-year probationary contracts, the

Court of Appeals was likewise unable to point to a statutory

provision permitting Illinois school boards to hire teachers

to multi-year contracts. The Court of Appeals reasoned that

because the provisions which empower boards to hire

teachers do not limit the length of teacher contracts, multi-

year contracts are sanctioned by state law. This is a clear

misreading of the lilinois statutory tenure scheme. Further-

more, such a conclusion ignores Illinois Supreme Court de-

cisions which support the contention that a school board

has only those powers expressly authorized by the state

legislature through statute. Bio-Medical Laboratories, Inc. v.

Trainor, 68 \\2d 540, 551, 370 N.E.2d 233 (1977), Northern

Illinois Automobile Wreckers and Rebuilders Association v

Dixon, 75 \ll.2d 53, 60, 387 N.E.2d 320 (1979), cert. den.

444 US. 844. 100 S Ct. 87, 62 L.Ed 2d 57 (1979), and City

of Chicago v. Fair Employment Practices Commission, 65 II

2d 108, 112-113, 357 NE. 2d 1154 (1976). Furthermore, it

ignores previous Illinois Supreme Court constructions of

Section 24-11 and its provisions. The Illinois Supreme Court

has consistently construed Section 24-11 strictly, since it

(the Tenure Act) created liabilities where none would other-

wise exist. Johnson v. Board of Education of Decatur School

District No. 61, 85 Ill 2d 338, 423 N.E.2d 903 (1981) and //-

linois Education Association Local Community High School

District 218 v. Board of Education of School District 218,

Cook County, 62 \I| 2d 127, 340 N_E. 2d 7 (1975).

Had the legislature meant boards to have the power to

offer teachers multi-year contracts, it would have specific-

ally SO provided as it did in Sections 10-23.8 and 10-23.8a

of the Illinois Schoo! Code. Section 10-23.8 states, inter alia:

§10-23.8 Superintendent under multi-year contract

To employ a superintendent under a multi-year con-

tract. No such contract can be offered or accepted for

less than or more than three years, except for a person

serving as superintendent for the first time in Illinois. In

such case, the initial contract shall be for a two year

period. Such contract may be discontinued at any time

by mutual agreement of the contracting parties, or may

be extended for an additional 3 years at the end of any

year.

Section 10-23 8a states, inter alia:

§10-23 8a. Principal under multi-year contract. To

employ a principal under a multi-year contract. No

such contract can be offered or accepted for less than

or more than 3 years, except for a person serving as

principal for the first time in Illinois. In such case, the

initial contract shall be for a 2 year period. Such con-

tract may be discontinued at any time by mutual agree-

ment of the contracting parties, or may be extended for

an additional 3 years at the end of any year.

The clear intent of the Illinois tenure system is that probatio-

nary teachers may be issued only year-to-year contracts. To

impute a contract entitlement to multi-year employment to a

nontenured teacher is to defeat the scheme of probationary

employment intended by the legislature.

CONCLUSION

For these reasons, a Writ of Certiorari should issue to re-

view the judgment and opinion of the United States Court

of Appeals for the Seventh Circuit.

Respectfully submitted,

THOMAS R. MILLER

Miller, Tracy & Braun

Law Offices, P.C

P.O. Box 227

Monticello, IL 61856

App. 1

APPENDIX

EXHIBIT A

(No. 82-1202 — Judgment affirmed.)

JESSE A. VAIL, Apellee, v. BOARD OF EDUCATION OF

PARIS UNION SCHOOL DISTRICT NO. 95,

TERRANCE C. PARKS, CHARLES R. FOX

and BERNIE RINEHART, Appellants.

Opinion filed April 19, 1983. — Rehearing

denied May 26, 1983.

ESCHBACH, J.E., concurring.

POSNER, R.A., dissenting.

Appeal from the United States District Court for the

Central District of Illinois, Danville Division.

The Hon. Harold A. Baker, Judge, presiding.

Thomas R. Miller, of Miller, Tracy & Braun Law Offices, P.C.,

of Monticello, and S. Craig Smith, of Dillavou, Overaker,

Asher & Smith, of Paris, for appellants.

Marc J. Ansel, of Erwin, Martinkus, Cole & Ansel, Ltd.,

of Champaign, for appellee.

CIRCUIT JUDGE WOOD delivered the opinion of the court:

In this § 1983 action this court must once again address

the meaning of “property” as used in the Due Process

Clause. The district court in a bench trial awarded

$19,850.99 in damages for the unlawful termination of the

plaintiff-appellee from a position in the school system of

Paris, Illinois. We affirm.

This case arose because of the efforts of the Board of

Education of Paris Union School District No. 95 (Board) to

secure the services of the plaintiff-appellee Jesse A. Vail

(Vail) as an athletic director and football coach. At the time

App. 2

the Board sought his services Vail was employed as super-

visor of recreation and physical education for the Stateville

Correctional Center in Joliet, Illinois.

On June 15, 1980 a search committee for the Board

traveled to Joliet. They held a breakfast meeting with Vail,

visited his place of employment, and later met with Vail in

his home. !n addition to talking about the nature of the job

duties and the salary, discussion between the search com-

mittee and Vail centered on job security and the length of

the term of the proposed contract.

Vail was concerned about the amount of time necessary

to correct deficiencies that existed in the athletic program

in Paris as well as giving up his job at Stateville. In response

to these concerr.s the committee stated that the length of

the term of the contract was a matter to be determined by

the full Board and that the committee itself could make no

commitment beyond one year.

According to the findings of fact, on June 24, 1980 the

Board met in special session to consider hiring Vail. At that

meeting the Board unanimously agreed to offer Vail a con-

tract of employment as athletic director and football coach.

lt was the consensus of the Board that it would assure Vail

of two years in that position.

The Board instructed Dr. James Cherry, the superinten-

dent, to convey an offer to Vail and to explain the Board's

intention to renew the one-year contract at the end of the

first year. Vail was informed of the offer and told that while

the Board could not offer him more than a one year contract,

it could assure him of extending the contract for a second

year. Vail accepted, traveled to Paris to execute a written

contract, and subsequently assumed the duties of athletic

director and football coach.

On March 2, 1981 the Board met in public session and

voted not to renew Vail’s contract for the ensuing year. Vail

was not given any explanation as to the reason for his termi-

nation, nor was he given any sort of hearing.

App. 3

On these findings of fact the district court held that Vail

had a constitutionally protected property interest in his con-

tinued employment with the Board. Citing Perry v. Sinder-

mann, 408 U.S. 593 (1972), the court held that the Board

acting under color of state law had deprived Vail of property

without due process of law and awarded $19,850.99 in

stipulated damages.

The Board's principal argument on appeal is that the dis-

trict Court erred in concluding that Vail had any constitution-

ally sufficient property interest to state a claim under 42

US.C. § 1983. The Board contends that Vail had no more

than a mere subjective expectation of continued employ-

ment and his sole rights as a new teacher are governed by

Illinois law which only requires the Board to give 60 days

notice before the end of a school term of its decision to ter-

minate. '

The nature of property interests to be protected by the

Due Process Clause of the Constitution has been addressed

in many contexts by the Supreme Court. Most relevant to the

present case are a pair of cases where the Court assessed

the property interests of two state university professors each

terminated at the end of a one-year contract without a hear-

ing. In Board of Regents v. Roth, 408 US. 564 (1972), the

Court held that a teacher terminated after one year had no

property interest in his continued employment where his un-

ilateral expectations had no basis in statute, contract, or

mutually explicit understanding with the university. /d at

578. In the companion case. Perry v Sindermann, 408 US

593 (1972). the plaintiff had been terminated after having

worked for a number of years under a series of one-year

contracts Here the Court found a property interest in con-

tinued employment that had been fostered by the rules and

There is no contention that the Board failed to act in complhance with

this requirement See infra pp 6-7

App. 4

the policy of the university, despite the lack of tenure or a

contractual provision. /d. at 599-601.

In defining the nature of a protected property interest Jus-

tice Stewart stated in Sindermann:

We have made clear in Roth, that “property” interests

subject to procedural due process protection are not

limited by a few rigid, technical forms. Rather “prop-

erty” denotes a broad range of interests that are sec-

ured by “existing rules or understandings.” A person's

interest in a benefit is a “property” interest for due pro-

cess purposes if there are such rules or mutually

explicit understandings that support his claim of entitle-

ment to the benefit and that he may invoke at a hearing

408 U.S. at 601 (citations omitted). Justice Stewart went on

to state that the ‘existing rules or understandings” need not

be a formal tenure system or even an explicit contractual

provision, citing implied contracts as sufficient to constitute

a protected property interest. /o. at 601-02. See a/so Con-

nell v. Higginbotham, 403 U.S. 207 (1971) (applying due

process to teacher without tenure or a formal contract but

with a clearly implied promise of continuing employment).

Sindermann does not turn on the implied contractual pro-

vision being one of tenure. The case law clearly establishes

that a property interest can be created through a statutory

entitlement, the operation of institutional common law, or

through principles of contract law. In addition to Sindermann

the Supreme Court has stated explicitly: “A property interest

in employment can, of course, be created by ordinance or

by an implied contract ' Bishop v Wood, 426 US 341, 344

(1976) Accord. Jago v Van Curen, 454 US 14, 18-19

(1981) (per curiam). Leis v Flynt, 439 US 438, 442 (1979)

(per curiam) \t is the binding nature of the contract rather

than its length which is significant This circuit has also

stated rather bluntly “A term of employment set by contract

has been recognized as a property interest which the state

cannot extinguish without conforming to the dictates of pro-

App. 5

cedural due process.” Hostrop v. Board of Junior College

District No. 515, 471 F.2d 488, 494 (7th Cir. 1972), cert. de-

nied, 411 U.S. 967 (1973). Accord, Adams v. Walker, 492

F.2d 1003 (7th Cir. 1974).

In this case we deal with the unlawful termination of a gov-

ernment employee, not some other matter of state business,

a subject which the Supreme Court repeatedly has held to

implicate constitutional rights under both the “property” and

the “liberty” interests protected by the Due Process Clause.

Arnett v. Kennedy, 416 U.S. 134 (1974); Roth, supra; Sinder-

mann, 408 US. at 597 and cases cited therein; Cafeteria

Workers v. McElroy, 367 U.S. 886 (1961). Cf. Hampton v

Mow Sun Wong, 426 U.S. 88, 102 (1976) (liberty interest in

obtaining government employment). When the government

acts as employer, the application of the Due Process Clause

protects the individual from arbitrary and capricious con-

duct and legitimizes governmental action when exercised

through proper channels.

Vail had a two-year employment promise rather than a

commitment for indefinite employment, as in the case of ten-

ure. The length of time that an individual retains an asset

affects the weight or va/ue of the interest, but not the nature

of the interest. Had Vail been successful in rebuilding the

school’s athletic program to the school's satisfaction, as no

doubt all parties hopefully anticipated, Vail would have ben-

efited after two years from statutory tenure, as do other

teachers. Athletic directors and coaches are generally not

regarded as second class members of a balanced school

program. Roth, 408 U.S. at 570-71. We affirm the finding that

the Board deprived Vail of his legitimate expectation of con-

tinued employment in terminating him without cause before

the expiration of his employment period, and that such de-

privation is a violation of due process and actionable under

the Civil Rights Act

The Board argues that under Illinois law there was no evi-

dence of an implied employment contract for two years

App. 6

Under Illinois law, an implied contract is proven by cir-

cumstances showing that the parties intended to contract or

by facts and circumstances from which a meeting of the

minds can be inferred. See generally, 12 Illinois Law & Prac-

tice Contracts § 4 (1982); United States ex rel. J.C. Shaeffer

Electric, Inc. v. O. Frank Heinz Construction Co., 300 F.

Supp. 396 (S.D. Ill. 1969); Arthur Rubloff & Co. v. Drovers

National Bank, 80 \ll. App. 3d 867, 400 N.E.2d 614 (1st Dist.

1980). While it is true that property interests stem from rules

and understandings governed by state law, the Illinois law

of implied contracts is quite sufficient in this case to create

a property interest protected under 42 U.S.C. § 1983

What the Board actually challenges is the district court's

findings of fact. After analyzing conflicting evidence on the

question of the deliberations of the Board and the represen-

tations made to Vail concerning the length of his employ-

ment, the district court credited the testimony of certain

Board members, Davis and McHenry. This decision was

based on the demeanor of the witnesses as well as lack of

recollection and impeachment on certain points testified to

by the opposing witnesses. A credibility finding is a finding

of fact which, under Rule 52 of Federal Rules of Civii Proce-

dure, ‘shall ..ot be set aside unless clearly erroneous, and

due regard shall be given to the opportunity of the trial court

to judge the credibility of the witnesses." Fed. R. Civ. P. 52.

Based on the record in this case we cannot reverse these

findings as Clearly erroneous

The Board argues that even if an implied contract is found

between Vail and the Board that the contract is unenforce-

able under Illinois law and therefore not sufficient to consti-

tute a property interest. First, the Board contends that the

provisions of the Illinois Teacher Tenure Act, Ill. Rev. Stat

ch. 122, § 24-11 (1979), preempt any property interest

created by the implied contract. Such a conclusion is not

supported by § 24-11 or any other provision of the Illinois

App. 7

School Code, Ill. Rev. Stat. ch. 122. § 1-1 et seq. (1979).

Section 24-11 itself contemplates just such a two-year

probationary period as was promised Vail. The statute

states:

Any teacher who has been employed in any district

as a full-time teacher for a probationary period of 2

consecutive school terms’ shall enter upon contractual

- continued service unless given written notice of dismis-

Sal stating the specific reason, therefor. by registered

mail by the employing board at least 60 days before

the end of such period.

Ill. Rev. Stat. ch. 122, § 24-11 (1979). The fact that the same

section provides a different procedure to terminate prob-

ationary teachers during their first year of teaching does not

suggest that a two-year contract is not permitted under |l-

linois law’. It is significant that Vail is not Claiming any right

to tenure under the Code which would have been extin-

guished by the actions of the Board in compliance with

§ 24-11. He merely claims an agreement for a two-year con-

tract as promised by the Board. There is simply no provision

of the Code placing an express Statutory one-year time limit

A term is defined as ‘the portion of the School year, July 1 to the fol-

lowing June 30, when schoo! is in actual session ” III Rev. Stat ch 122

§ 24-11 (1979)

The Board relies on the portion of that section which states

Any full-time teacher who is completing the first year of the prob-

ationary period described in the preceding paragraph, or any

teacner employed on a full-time basis not later than January 1 of

the schoo! term, shall receive written notice from the employing

board at least 60 days before the end of any schoo! term whether

or not he will be re-employed for the following school term. if the

board fails to give such notice. the employee shall be deemed re-

employed, and not later than the close of the then current school

term the board shall issue a regular contract to the employee as

though the board had re-employed him in the usual manner

App. 8

on contracts to be offered to probationary teachers.‘

The Board also argues that any implied contract would be

unenforceable because it arises from an ultra vires Board

act. The appellants contend that a two-year contract would

be an ultra vires limitation on the Board's ability to terminate

teachers at will. Appellants cite the provision of § 10-22.4

as granting the Board discretionary power to dismiss, or to

fail to renew a teacher's employment. While it is true that

these powers cannot be delegated or contracted away to

a third party, the Board's exercise of its discretion in this

case in offering a two-year contract in no way violates the

express or implied requirement of § 10-22. See Libertyville

Education Association v. Board of Education of School Dis-

trict No. 70, Lake County, 56 Ill. App. 3d 503, 371 N.E.2d

676 (2d Dist. 1977).

Appellant's final contention is that the oral promise to

renew employment after the first year is unenforceable

under the Illinois Statute of Frauds.*° This argument has no

merit given, under Illinois law, as elsewhere, the Statute of

Frauds would not bar enforcement of the contract where

there has been partial performance by the parties. Anas-

Appellant's citation of our decision in McElearney v University of /I-

linois, Chicago Circle. 612 F 2d 285 (7th Cir 1979). is therefore inappo-

site. First’ and foremost, McElearney received only ‘informal assurance

iN contrast to the instant case in which Vail received promises which rose

to the level of an implied contract Second, the explicit rules governing

tenure in McElearney suggest that any reliance to be based on a sup-

posed entitlement to tenure by virtue of the informal assurances McElear-

ney received would be unreasonable Finally, our holding in Hostrop v

Board of Junior College District No 515, 523 F 2d 569 (7th Cir 1975)

cert denied. 425 US 963 (1976). suggests that a cause of action for

state action in violation of due process would exist even if Illinois law only

permitted a one-year contract

I Rev. Stat ch 59. § 1 (1981) states

No action shall be brought upon any agreement that is not to

be performed within the space of one year from the making thereo!

unless the promise shall be in writing

App. 9

taplo v. Radford, 14 Ill. 2d 526, 153 N.E.2d 37 (1958),

Yorkville National Bank v. Shaefer, 71 Ill. App. 3d 137, 388

NE 2d 1312 (2d Dist. 1979); Grundy County National Bank

v. Westfal/. 13 lll App. 3d 839, 301 N.E.2d 28 (3rd Dist.

1973)

Even if we were to assume arguendo that no enforceable

contract under state law existed between Vail and the

Board. we are not prepared to hold that this alone precludes

the establishment of a protected property interest. The Civil

Rights Act itself speaks of actions taken under color of state

law and not under authority of state law. The Supreme Court

has stated

Although the underlying substantive interest 's created

by “an independent source such as state law,” federal

constitutional law determines whether that interest rises

to the level of a “legitimate claim of entitlement’ pro-

tected by the Due Process Clause.

Memphis Light. Gas & Water Division v. Craft, 436 U.S. 1,

9 (1978)

More recently, the Court has refused to limit constitutional

“property” rights to mere contract rights. Jago v. Van Curen,

454 US. 14 (1981). Legitimate and reasonable reliance on

a promise from the state can be the source of property

rights protected under the Due Process Clause and the Civil

rights statutes. Sindermann, 408 U.S. at 602. In Soni v

Board of Trustees of the University of Tennesse, 513 F.2d

347 (6th Cir. 1975), cert. denied, 426 U.S. 919 (1976), the

court held that reasonable reliance on assurances and con-

duct by university officials that the plaintiff had a tenure

track position was sufficient to create a property interest de-

spite state law and university regulations which prohibited

an alien from receiving such an appointment. See a/so Har-

ris v. Arizona Board of Regents, 528 F. Supp. 987 (D. Ariz.

1981). Our own decision in McElearney v. University of I/-

linois, Chicago Circle, 612 F.2d 285 (7th Cir. 1979), is in no

way inconsistent with this reliance standard given that the

App. 10

plaintiff in McElearney received only informal assurances

thus failing to meet the legitimate and reasonable reliance

necessary to create a property interest.

The actions of the Board worked to deny Vail’s legitimate

expectations of continued employment. The extent of his re-

liance on the Board’s promise is shown by the fact he left

Joliet where he and his family had lived for thirteen years,

left a job he had held for ten years, and even took a salary

cut to take the job in Paris. The reasonableness of the re-

liance is illustrated by the concerns over security Vail raised

from his very first meeting with Dr. Cherry tc the final actions

of the Board and the promises Vail received as an induce-

ment to taking the job.

Parratt v. Taylor, 451 U.S. 527 (1981), held a claim was

not stated under 42 U.S.C. § 1983 when certain hobby ma-

terials ordered by mail by an inmate of a Nebraska prison

were not delivered to him due to the unauthorized failure of

state agents to follow established state procedures. The re-

medy was found to lie under state law. In our recent deci-

sion in Wolf-Lillie v. Sonquist, Nos. 81-1117 & 81-2833 (7th

Cir. Jan. 31, 1983), we held that Parratt applied to that plain-

tiff's § 1983 due process allegations. In that case the sheriff

had executed a writ of restitution to seize plaintiff's house

trailer contrary to the state statute. In both Parratt and Wolff-

Lilie the plaintiffs were relegated to post-deprivation state

law tort remedies. Pre-deprivation hearings were neither

practical nor appropriate in either case where clearly estab-

lished state policies were involved and ignored due to negli-

gence or otherwise. We see neither case as controlling the

present case. The Supreme Court had the opportunity but

refused to expand Parratt beyond “a tortious loss of prop-

erty or result of a random and unauthorized act by a state

employee." See Logan v. Zimmerman Brush Co., 455 US.

422 (1982).

App. 11

IV.

Finally, the appellants argue that the district court's award

of damages is improper. They contend that the proper re-

medy in this case is either a hearing to determine whether

the termination was justified or a remand to have the plaintiff

come forward with proof of actual losses

The issue of good cause” having been put into issue by

the pleadings and fully tried and decided by the district

court negates the need for any further proceedings on this

issue. The district court's finding that the Board was in

breach of contract and, therefore, that V/ail’s termination was

not for good cause, distinguishes this case from Carey v

Piphus, 435 US. 247 (1978). The stipulated damages

awarded in this case adequately *fford a remedy for the

harm suffered from the deprivation of Vail’s property interest

without due process of law.

Accoruingly, this case is

AFFIRMED

ESCHBACH, Circuit Judge, concurring. While | join in

Judge Wood's opinion, | write separately in order to respond

to Judge Posner's strongly worded dissenting opinion. With

all respect, | believe that my brother Posner treats this case

as if it were one of first impression, and reasoning from fun-

damental principles concludes that the case does not be-

long in federal court. The central issue this case presents,

however, is not an issue of first impression-this court ex-

pressly held in Hostrop v. Board of Junior College District

No. 515, 471 F.2d 488 (7th Cir. 1972), that a term employ-

ment contract provides a public employee with a property

interest in continued employment during his term and that

before such an employee may be discharged he must be

afforded a meaningful opportunity to be heard. | believe that

Hostrop was correctly decided. When | Say “correctly” de-

cided, | mean that it was decided in accordance with the

App. 12

authoritative pronouncements of the United States Supreme

Court and remains good law in light of subsequent prece-

dent. Whether it was correctly decided in some sort of ulti-

mate jurisprudential or philosophical sense is not within my

domain as an intermediate appellate court judge once |

have decided that it was properly decided in the former

sense. My brother Posner calls this approach to deciding

cases “putting the blame on the [Supreme] Court.’ Post at

41. | call it adherence to stare decisis and to a superior au-

thority.

In light of the fact that Judge Posner believes that my

brother Wood and | have engaged in a selective reading of

precedent, reading some cases ‘broadly’ and others ‘‘nar-

rowly’, | shall explain my own understanding of what | con-

sider to be the controlling authority in this case.

In Roth v. Board of Regents, 310 F.Supp. 972 (W.D. Wisc

1970), affod, 446 F.2d 806 (7th Cir. 1971), revo, 408 US

564 (1972), the plaintiff was hired as a teacher at a state

college for a one-year term. When college officials did not

renew his contract of employment, Roth argued that their re-

fusal to do so violated both his First Amendment rights and

his procedural due process rights. Judge Doyle granted

Roth's motion for summary judgment on the procedural due

process claim and stayed proceedings on the First Amenda-

ment claim. Employing the general balancing test of

Cafeteria Workers v. McElroy, 367 U.S. 886 (1960), Judge

Doyle balanced Roth's interests in being rehired and the

state's interests in summary non-retention decisions and

concluded that due process required that college officials

provide Roth with an explanation for their decision and an

opportunity to be heard regarding that decision. Judge

Doyle, while recognizing that the substantive First Amend-

ment claim was a discrete one, also reasoned that requiring

a hearing before the decision concerning retention was

made would also serve to vindicate important First Amend-

ment interests at stake in the college environment. 310

F Supp. at 979-80. This court affirmed Judge Doyle's judg-

App. 13

ment employing essentially the same rationale as the district

court. We balanced the grievous loss one suffers when not

retained in a job against the need for a summary decision,

446 F.2d at 808-09, and observed that the the requirement

of a hearing would serve as a “prophylactic” against deci-

sions based on impermissible reasons, id. at 810. Judge

Duffy dissented, basically arguing that since Roth was not

a tenured faculty member, the college officials could deny

him re-employment summarily

The Supreme Court's decision reversing our judgment

was a landmark in constitutional jurisprudence. Eschewing

a general balancing test for the purpose of determining

whether the Fourteenth Amendment mandates procedural

protections concerning a state decision which adversely af-

fects an individual, the Court instead held that the threshold

question in a procedural due process case is whether an

individual has a liberty or property interest at stake. The

Court recognized the broad and majestic nature of these

terms, but at the same time gave them meaning. The Court

ascertained the meaning of property inductively, by examin-

INg Cases In which procedural due process protections had

been accorded even though the cases themselves did not

expressly state that the individual interests at stake consti-

tuted property

Thus, the Court has held that a person receiving wel-

fare benefits under statutory and administrative stan-

dards defining eligibility for them has an interest in con-

tinued receipt of those benefits that is safeguarded by

procedural due process. Goldberg v. Kelly, 397 U.S

254. See Flemming v. Nestor, 363 U.S. 603, 611. Simi-

larly, in the area of public employment, the Court has

held that a public college professor dismissed from an

office held under tenure provisions, Siochower v. Board

of Education, 350 U.S. 551, and college professors and

staff members dismissed during the terms of their con-

tracts, Wieman v. Updegraff. 344 US. 183, have inter-

App. 14

ests in continued employment that are safeguarded by

due process. Only last year, the Court held that this

principle “proscribing summary dismissal from public

employment without hearing or inquiry required by due

process" also applied to a teacher recently hired with-

out tenure or a formal contract, but nonetheless with a

clearly implied promise of continued employment. Con-

nell v. Higginbotham, 403 U.S. 207, 208

Certain attributes of ‘property’ interests protected by

procedural due process emerge from these decisions.

To have a property interest in a benefit, a person

clearly must have more than an abstract need or desire

for it. He must have more than a unilateral expectation

of it. He must, instead, have a legitimate claim of en-

tittement to it. It is a purpose of the ancient institution

of property to protect those claims upon which people

rely in their daily lives, reliance that must not be arbit-

rarily undermined. It is a purpose of the constitutional

right to a hearing to provide an opportunity for a person

to vindicate those claims.

Property interests, of course, are not created by the

Constitution. Rather, they are created and their dimen-

sions are defined by existing rules or understandings

that stem from an independent source such as state

law — rules or understandings that secure certain bene-

fits and that support claims of entitlement to those ben-

efits. Thus, the welfare recipients in Goldberg v. Kelly,

supra, nad a claim of entitlement to welfare payments

that was grounded in the statute defining eligibility for

them. The recipients had not yet shown that they were,

in fact, within the statutory terms of eligibility. But we

held that they had a right to a hearing at which they

might attempt to do so.

408 U.S at 576-77 (emphasis added) (footnotes omitted)

Having thus formulated the principles governing the iden-

tification of property interests for purposes of the due pro-

App. 15

cess clause, the Court proceeded to apply these principles

to Roth's situation:

Just as welfare recipients’ “property” interest in wel-

fare payments was created and defined by statutory

terms, so the respondent's “property” interest in em-

ployment at Wisconsin State University-Oshkosh was

created and defined by the terms of his appointment.

Those terms secured his interest in employment up to

June 30, 1969. But the important fact in this case is that

they specifically provided that the respondents em-

ployment was to terminate on June 30. They did not

provide for contract renewal absent “sufficient cause. ”

Indeed. they made no provision for renewal what-

soever

Thus, the terms of the respondent's appointment

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

respondent surely had an abstract concern in being re-

hired, but he did not have a property interest sufficient

to require the University authorities to give him a hear-

ing when they declined to renew his contract of em-

ployment

408 US. at 578 (emphasis added) (footnote omitted)

In my view, the foregoing langugage is dispositive of the

question of whether Vail had a property interest in continued

employment in the instant case: the Court's authoritative in-

terpretation of its past precedent concerning the employees

dismissed during the term of their contracts, the principles

which emerge from those decisions (/.e., that one must have

a legitimate claim of entitlement to a benefit and that a pur-

pose of property is to protect those claims upon which

people rely in their daily lives), and the application of those

App. 16

principles in the case before it (/.e., that Roth had a property

interest during the term of his appointment), all compel that

conclusion. Vail has established precisely what Roth failed

to establish — a right to renewal of his one-year employment

contract.

Judge Posner does not explain what significance he ac-

cords to the language of the oth opinion. Rather, he merely

States that Roth “held that if a state college teacher had no

right under state law to continued employment, he had no

property right under the due process clause.” Post at 30.

That tautological statement, however, is not very instructive,

nor does it distinquish Roth. He also tells us that ‘we are

not obliged to read Supreme Court decisions broadly in

order to reach foolish results.’ Post at 33. Aside from those

generalities, Judge Posner attempts to distinquish Roth by

distinquishing Perry v. Sindermann, 408 U.S. 593 (1972), a

companion case to Aoth.

In Sindermann, the plaintiff was employed as a teacher

in a State college under a series of one-year contracts. While

State law did not provide for a tenure system, Sindermann

argued that he had “de facto” tenure because of an under-

Standing fostered by the college administration. Applying

the principles announced in Roth, the Court emphasized

that the

“property” interests subject to procedural due process

protection are not limited by a few rigid, technical

forms. Rather, ‘property’ denotes a broad range of in-

terests that are secured by “existing rules or under-

standings /d., at 577. A person's interest in a benefit

IS a “property” interest for due process purposes if

there are such rules or mutually explicit understandings

that support his claim of entitlement to the benefit and

that he may invoke at a hearing. /bid.

Id. at 601. An implied-in-fact contract, if recognized by state

law, was held to create such a claim of entitlement. and Sin-

dermann’s allegations on this point were considered suffi-

App. 17

cient to withstand summary dismissal.

Judge Posner tells us that the “important thing” in Sinder-

mann was that plaintiff alleged that he had “tenure” which

in Judge Posner's view is “special.” The telling deficiency

with this interpretation of Sindermann is that it finds no Sup-

port in the Supreme Court's opinion. The language which

Judge Posner quotes from Sindermann indeed uses the

term tenure—it would be awkward to use another word in dis-

Cussing Sindermann’s claim that he had tenure. Sindermann

was not contending that he had any express contract for

continued employment: he argued he had de facto tenure

Judge Posner's interpretation not only finds no support in

the Court's opinion, but is plainly inconsistent with it. First,

it puts the Sindermann cart before the Roth horse. Roth an-

nounced the principal governing procedural due process

Cases, a principle which Sindermann merely applied to the

facts of that case. There can be no doubt that the Supreme

Court did not view tenure as “special.” In Roth itself. the

Court stated at the outset of the opinion that Roth “had no

tenure rights to continued employment.” 408 US. at 566.

Perhaps Judge Posner would have ended his analysis of

that case with that fact, as was suggested by the dissenting

opinion in this court's consideration of the Roth case. but the

Supreme Court adopted a far different analysis and did not

view the absence of tenure as dispositive. Second. Judge

Posner's interpretation is contrary to the Supreme Court's

admonition that the property interests protected by the due

process Clause are not limited by a few rigid, technical

forms.

Judge Posner's second, though interrelated basis for dis-

tinquishing or perhaps “interpreting” Roth, Sindermann, and

Our decision in Hostrop as well, is that those cases involved

“teachers” whereas this case involves an athletic coach. A

distinction is suggested between academic and non-

academic teachers, and only the former are entitled to the

special judicial solicitude which would transform their inter-

ests in continued employment into “property” interests. This

App. 18

argument finds some support in the caselaw. It finds its sup-

port in a dissenting opinion and the district court's decision

in Hostrop which this court reversed on the authority of Roth

and Sindermann.

Justice Douglas’ dissent in Roth emphasizes the impor-

tance of academic freedom, 408 U.S. at 582 passim, and

also distinquishes between teachers and other workers in

arguing in favor of according Roth a due process right to

a hearing notwithstanding the fact he had no claim of entitle-

ment to continued employment. If, in fact, teachers are enti-

tled to special procedural protections to safeguard

academic freedom, then a distinction such as that proposed

by Justice Douglas would be the logical one to make—and

a teacher would be entitled to a hearing on any decision not

to retain him, irrespective of whether he had a claim of enti-

tlement to continued employment, and irrespective of state

law on the subject. Judge Posner embraces Judge Douglas’

distinction, but does not apply it to its logical conclusion. In-

stead, he argues that the interest a teacher has in continued

employment is property but the interest that a non-academic

employee has in continued employment is not property. This

position has a somewhat familiar ring to it, since it is essen-

tially the position adopted by the district court in Hostrop,

337 F.Supp. 977 (N_D. Ill. 1972).

In Hostrop, a college administrator argued that he was

entitled to a hearing prior to termination. The district court,

denying relief, distinguished this court's decision in Roth on

the ground that Aoth involved a professor where the need

for academic freedom was implicated; the district court

found the administrator less deserving of protection, though

it did not speak in property terms. After the Supreme Court's

decisions in Roth and Sindermann, this court reversed. Our

decision in Hostrop, Judge Posner states, “extended” Sin-

dermann to term employment contracts, and did so “uncriti-

cally, without discussion of the distinction | have just noted

[between tenure and term contracts]."’ Post at 31. Because

of these purported factors, Judge Posner does not think we

App. 19

must overrule Hostrop in order to hold that a term contract

does not create a property interest; rather, we may simply

“distinguish” it. First, Hostrop does not “extend” Sinder-

mann; it applies the authoritative pronouncements of Roth

to the case before it. Second, there was no reason for Hos-

trop to discuss the distinction Judge Posner would make

between long-term and short-term employment relation-

ships, for Roth and Sindermann make clear that no such

doctrinal distinction exists. Third, Hostrop is not distinguish-

able because of the purported greater judicial solicitude

that exists for teachers as opposed to other employees —

in reversing the district court opinion, this court rejected

such a distinction. Fourth, the related “ speculat[ion]" that

the Roth, Sindermann, and Hostrop courts treated the First

Amendment claims and due process claims as distinct

rights “because protection against arbitrary dismissal was

thought necessary to prevent infringements of freedom of

academic speech that would be too difficult to prove,’’ post

at 32, totally ignores the fact that both the district court and

this court advanced that rationale in support of according

protection in the Roth case itself and the Supreme Court re-

jected that approach. See 408 US. at 575 n. 14. Fifth, re-

gardiess of whether Hostrop represented an extention of

Roth, it is the law of this circuit until this court overrules it-it

cannot be ‘‘distinguished” on the ground that it did not ex-

pressly respond to an argument which a later court finds

persuasive.

In summary on the property interest question, | believe

Roth is dispositive, just as this court held in Hostrop in a

similar case. In this regard. with all due respect to my

brother Posner, | believe his opinion on this question resem-

bles more the work of a legal commentator than that of an

intermediate appellate court judge. He posits rationales for

prior decisions and then concludes that his anaylsis of the

instant case is consistent with those posited rationales,

superimposing a unifying doctrinal thread onto the cases

which would explain their outcome in a principled fashion.

- App. 20

In my view, however, the attempt to engraft his analysis onto

those cases ignores the Supreme Court's enunciation of the

guiding principles and amounts to substituting his opinion

for the ones appearing in the United States Reports. | say

this recognizing that often cases are decided on bases

which are not fully articulated by the courts rendering the

decisions and often after a series of decisions reveal that

the rationale expressly embraced by the courts does not re-

flect the real basis of judgment, the old rationale is finally

discarded and a new one takes its place. The law, from time

immemorial, has evolved and matured through this process.

and indeed Aoth represents but one example of this pro-

cess. The Supreme Court may well decide that the princi-

ples enunciated in Roth shoula be replaced. Writing, as |

am, on the shores of Lake Michigan rather than the banks

of the Potomac, | am not free to make that decision

Judge Posner's second point concerns the nature of the

interest created by state contract law and whether Vail was

deprived of that precise interest when he was terminated

My examination of Illinois authority convinces me that Judge

Posner is correct in concluding that the Illinois courts would

not reinstate Vail to his position to serve a second year, Dut

instead would only award money damages. Bessier v

Board of Education, 69 \Il.2d 191, 370 N.E.2d 1050 (1977)

Because money damages would be Vail’s sole state re-

medy, Judge Posner reasons the only right Vail ever had

was a right to performance or damages for non-perfor-

mance. The state has not deprived Vail of that disjunctive

right, because it has never ‘refused’ to pay damages in a

state court proceeding. There are at least two reasons | find

this conception of Vail’s interest unpersuasive. First, if state

law did provide for reinstatement, then under Judge

Posner's analysis Vail still would not be “deprived” of prop-

erty until the state courts “refused” to reinstate him. If that

is not requiring exhaustion of state remedies, | do not know

what would be an exhuastion requirement. Second, | believe

that Judge Posner views Vail's legitimate interests created

App. 21

by the contract too narrowly, and exalts abstraction over re-

ality. Vail’s dismissal deprived him of his livelinood—a liveli-

hood he could legitimately believe would continue for the

term of the agreement unless cause was shown for his ter-

mination. His reliance interest in that relationship, with all its

significant real life consequences, was destroyed upon his

termination.

Judge Posner's last point is a dispute concerning what

process is due. He questions the need for a predeprivation

hearing in this case. He does not address the analysis of

the Roth opinion on this subject, 408 U.S. at 569-70, nor our

analysis in Hostrop that a predeprivation hearing is re-

quired, 471 F.2d at 494-95 & n.15. Rather, he primarily con-

tends that we distinguish Parratt on the ‘‘factitious"’ ground

that it applies only to negligent deprivations of property

In Parratt v. Taylor, 101 S. Ct. 1908 (1981), the Court held

that the negligent loss of a prisoner's tangible persorialty by

the state, acting as a bailee, constituted a deprivation of

property within the meaning of the Fourteenth Amendment.

lt proceeded to consider whether the prisoner should have

been given a hearing about the matter before the state lost

the property. Thus phrasing the question, the answer is ob-

vious. Framed another, more traditional way, once a depri-

vation under color of law is established, the issue is what

process is due. The Court began its analysis of that question

by observing that it had “never directly addressed the ques-

tion of what process is due a person when an employee of

a State negligently takes his property.” /d. at 1914. To an-

swer that question, it first canvassed prior cases in which

a predeprivation hearing had been required. “In all these

cases,” the Court observed, “deprivations of property were

authorized by an established state procedure and due pro-

cess was held to require predeprivation notice and hearing

in order to serve as a check on the possibility that a wrong-

ful deprivation would occur.” /d. The Court then examined

Cases in which a predeprivation hearing was held unneces-

sary. ‘These cases recognize that either the necessity of

App. 22

quick action by the State or the impracticality of providing

any meaningful predeprivation process can, when coupled

with the availability of some meaningful means by which to

assess the propriety of the State's action at some time after

the initial taking, satisfy the requirements of procedural due

process." /d. at 1915 (footnote omitted). The court then dis-

tinguished between “final” deprivations of property and “in-

itial’ deprivations of property, noting that a “meaningful” op-

portunity to be heard need not always require a hearing be-

fore the “initial deprivation of property. Applying these prin-

ciples to the case before it, the Court Stated:

The justifications which we have found sufficient to

uphold takings of property without any predeprivation

process are applicable to a situation such as the pre-

sent one involving a tortious loss of a prisoner's prop-

erty as a result of a random and unauthorized act by

a state employee. In such a case, the loss is not a re-

sult of some established state procedure and the State

cannot predict precisely when the loss will occur. It is

difficult to conceive of how the State could provide a

meaningful hearing before the deprivation takes place.

The loss of property, although attributable to the State

as an action under “color of law," is in almost all cases

beyond the control of the State. Indeed, in most cases

it is not only impracticable, but impossible to provide

a meaningful hearing before the deprivation. That does

not mean, of course, that the State can take property

without providing a meaningful postdeprivation hear-

ing. The prior cases which have excused the prior

hearing requirement have rested in part on the avail-

ability of some meaningful opportunity subsequent to

the initial taking for a determination of rights and

liabilities. :

ld. at 1915-16. The Court then proceeded to endorse the

analysis employed by then Judge Stevens writing for this

court in Bonner v. Coughlin, 517 F.2d 1313 (7th Cir. 1975),

modified en banc, 545 F.2d 565 (1976), cert. denied, 435

App. 23

US. 932 (1976), which emphasized the availability of a

postdeprivation remedy. The Court concluded:

Application of the principles recited above to this

case leads us to conclude the respondent has not al-

leged a violation of the Due Process Clause of the

Fourteenth Amendment. Although he has been de-

prived of property under color of state law, the depriva-

tion did not occur as a result of some established state

procedure. Indeed, the deprivation occurred as a re-

sult of the unauthorized failure of agents of the State

to tollow established state procedure. There is no con-

tention that the procedures themselves are inadequate

nor is there any contention that it was practicable for

the State to provide a _ predeprivation hearing.

Moreover, the State of Nebraska has provided respon-

dent with the means by which he can receive redress

for the deprivation.

Our decision today is fully consistent with our prior

cases. To accept respondent's argument that the con-

duct of the state officials in this case constituted a vio-

lation of the Fourteenth Amendment would almost

necessarily result in turning every alleged injury which

may have been inflicted by a state official acting under

“color of law” into a violation of the Fourteenth Amend-

ment cognizable under § 1983. It is hard to perceive

any logical stopping place to such a line of reasoning.

Presumably, under this rationale any party who is invol-

ved in nothing more than an autmobile accident with

a state official could allege a constitutional violation

under § 1983. Such reasoning “would make the Four-

teenth Amendment a font of tort law to be superim-

posed upon whatever systems may already be ad-

ministered by the states.” Pau/ v. Davis, 414 U.S. 693,

701, 96S. Ct. 1155, 1160, 47 LEd.2d 405. We do not

think that the drafters of the Fourteenth Amendment in-

tended the amendment to play such a role in our soci-

ety

App. 24

Id. at 1917.

In my view, the Supreme Court in Parratt decided two dis-

crete questions regarding the issue of whether plaintiff had

been deprived of property without due process of law. The

first question was whether due process required a predepri-

vation hearing. The court held that no such hearing was re-

quired, not because of the existence of postdeprivation re-

medies, but because a predeprivation hearing simply could

not be meaningful—indeed, in the case of negligent depri-

vations, as the Court observed, a predeprivation hearing

would be a practical impossibility. Hence, the state's failure

to provide Parratt with a hearing before the state officials lost

his property did not violate due process. Now it is true that

the court said that in prior cases excusing a lack of a pre-

deprivation hearing, the decisions rested in part on the

availability of a postdeprivation proceeding, but in those

cases a predeprivation hearing would have been meaning-

ful, but the exigencies of the situation justified postponing

the hearing until after the initial deprivation. The decisions

in those cases—that no violation of due process had oc-

curred—indeed rested on the availability of postdeprivation

remedies, because once it was determined a predeprivation

hearing was not feasible, that could not end the due pro-

cess analysis. Nor did that conclusion end the due process

analysis in Parratt. Rather, the second question which Par-

ratt decided was whether the postdeprivation remedy ac-

corded due process of law. The Court examined the remedy

provided by state law, and concluded it would provide Par-

ratt a meaningful opportunity to be heard regarding his

claim, and that satisfied due process. A contrary conclusion

in Parratt, of course, would have made § 1983 a font of tort

law since predeprivation hearings are conceptually absurd

with respect to injuries caused by the negligence of state

actors. Any garden variety negligence cause of action

against such actors would necessarily be cognizable under

§ 1983

App. 25

The instant case is not governed by Farratt. In this case,

before the initial deprivation of Vail’s property interest ocur-

red—that is, before Vail was discharged—he could have

been provided with a hearing, and the hearing would have

provided him with a meaningful opportunity to guard against

the risk of a wrongful or erroneous decision. The hearing re-

quirement cannot guarantee an erroneous decision will not

occur, but it does serve as a check on that possibility. If Vail

had been provided with such a hearing, and still had been

discharged, and then attempted to bring a § 1983 action,

relief would be denied, and Parratt would be applicable. In

such a case, the “initial deprivation of Vail’s interest would

have been in accordance with due process of law. and Vail

could not complain about any ‘final’ deprivation because

such a deprivation would not have occurred unless and until

he lost a breach of contract action in state court, in which

case, assuming the state courts provided him with a full and

fair opportunity to litigate his claim, he would have been ac-

corded all the process that was due. In Hostrop, we

explained the difference between federal and state interests

in such a case as follows:

The fact that plaintiff relies upon his employment

contract to establish a property interest worthy of pro-

tection through the due process Clause does not mean

that his only remedy is a contract action in state court.

A civil rights action based on the deprivation of due

process and a contract action to recover damages for

a breach are independent remedies. The civil rights ac-

tion based on deprivation of a property interest estab-

lished by contract seeks vindication for the arbitrary

manner in which the contract was breached. A ‘garden

variety” contract action seeks damages only for the

losses caused by the breach once it has occurred in

any manner whatsoever. There will be occasions when

one action will lie but the other will not, as when the

state has grounds to break an employment contract,

but does so by violating an employee's due process

App. 26

rights to notice and a hearing.

471 F.2d at 494.15.

Judge Posner's interpretation of Parratt accords great, in-

deed controlling significance to the statements in Parratt

that in cases where predeprivation hearings were required,

the deprivations were authorized by an established state

procedure. Here, Judge Posner tells us, the deprivation oc-

curred because of defendants’ unauthorized failure to follow

established state “procedure” regarding the honoring of

contracts. He then questions, in light of Parratt, the contin-

uing viability of Monroe v. Pape, 365 U.S. 167 (1961), which

analyzed under the color of law question.

| believe Judge Posner's analysis of Parratt in this regard

misconceives the precise issue before the Parratt Court

Parratt in nO way undermines Monroe v. Pape—Parratt

makes plain that even though the negligence of the prison

Officials was naturally unauthorized, it could not be ques-

tioned that their conduct satisfied the under color of law re-

quirement. 101 S Ct. at 1913. The fact that the conduct was

unauthorized was significant only in as much as the conduct

was mindless, and hence, not amenable to the salutary pro-

tections which a hearing in advance would provide

Moreover, and | think significantly, ministerial actions were

at issue in Parratt, whereas in this case, a discretionary ac-

tion is at issue. But in any event, assume that a predepriva-

tion hearing is only required when the deprivation occurs as

a result of an established state procedure. In this case, it

did. The school board established the procedure for ter-

minating individuals such as Vail, and that procedure was

to vote on the matter without providing such individuals with

a reason for the decision, nor a meaningful opportunity to

be heard. Moreover, the Board authorized the termination:

in Parratt no responsible official authorized the loss. Judge

Posner uses the word “procedure” to mean policy, divines

that there is a state policy regarding the honoring of con-

App. 27

tracts, and hence, the Board's action was not authorized by

state policy. In light of that analysis, his discussion of Mon-

roe v. Pape is understandable—for the basic issue there

was whether a person acting contrary to state law Is acting

under color of state law. That is not the question in this case,

however, nor was it a question in Parratt

Finally, Parratt, in analyzing cases in which a predepriva-

tion hearing was required, noted, that the Court had recently

“recognized that a driver's license is often involved in the

livelinood of a person and as such could not be summarily

taken without a prior hearing.” 101 S. Ct. at 1914. If an inter-

est which is only related to a person's livelihood requires a

predeprivation hearing, termination of a person's livelinood

should require such a hearing as well

In conclusion, my research indicates that there has been

no deluge of § 1983 cases such as this since our decision

in Hostrop, nor is that surprising. States have been on notice

since Hostrop that before discharging a state employee in

Vail's position, they must give the employee a meaningful

opportunity to be heard. Thus, Judge Posner's argument

that this case takes another step down a road which leads

to the displacement of state jurisdiction is wrong on several

counts. First, Hostrop (if not Roth itself) took that step a de-

cade ago. Second, if state officials want to avoid the federal

courthouse, they need merely provide a meaningful predep-

rivation hearing. And finally, of course, the state may choose

not to employ individuals for short, fixed terms; indeed, such

contracts may be rather unusual for reasons having nothing

to do with the hearing requirement imposed by the due pro-

cess clause. Moreover, one wonders that if the result in this

case is, as Judge Posner states, ‘contrary to every principle

of federalism and good sense,” post at 41, just why it is that

the most he can say with “apodictic certainty” is that the re-

sult we reach “is not predestined by existing case law,’ post

at 40-41.

In closing, | confess that | myself may question whether

App. 28

there is a federal interest in this case warranting the inter-

vention of the courts of the United States. If | were writing

on a clean slate, | would have reservations about embracing

a doctrine which led to that conclusion. In view of the cur-

rent authoritative doctrine, however, | am convinced that Vail

States a meritorious § 1983 claim, and therefore | need not

embark upon the task of resolving my own doubts about the

proposition one way or the other

POSNER, Circuit Judge, dissenting. A school board has

a squabble with its football coach and fires him, though his

(implied) contract has a year to run. This court holds that

the board's action violates section 1 of the Civil Rights Act

of 1871, 42 USC. § 1983, because: the Fourteenth Amend-

ment forbicis the state, of which the school board is an arm,

to deprive anyone of life, liberty, or property without due pro-

cess of law; a contract right is a species of property and

was taken away here without a hearing; therefore the state

acted unconstitutionally. If this logic is applied unflinchingly,

any time a school board or any other local government body

breaks a contract without first holding a hearing, the con-

tractor—who need not be an employee, who could be a

supplier of paper clips—can get damages in federal court.

| am slightly comforted by the realization that the life of the

law has not been logic and by the suggestion in Judge

Wood's opinion that “other matter[s] of state business” may

be treated differently from employment contracts. | would be

more comforted if the opinion gave a reason for distinquish-

ing the supply of goods from the supply of personal ser-

vices, which it does not, and if it omitted the dictum that in

the employment area no contract, express or implied, is

needed to create a constitutionally protected property right

But even if the decision in this case can be confined to

employment contracts—even if it can be confined io cases

where the employee is fired—it goes too far. There is no fed-

eral interest in this case, unless the Fourteenth Amendment

is thought to invest with federal significance all state action,

however unthreatening to the rights we deem fundamental.

App. 29

Vail was not fired because he exercised his freedom of

speech or some other liberty protected by the Constitution,

or because of his race (in which event he would have a

claim under the equal protection clause of the Fourteenth

Amendment), or for any other reason in which the federal

courts as tribunals for enforcing the Constitution—viewed as

a charter of liberty rather an an invitation to the federal

courts to bring the whole business of the states under their

wing—have an interest. The only federal question in this

case is whether breaches of public employment contracts

are constitutional torts litigable in federal court under 42

USC. § 1983. Once that threshold is crossed, all that is left

to be discussed-——all the court does discuss--is whether the

school board broke is contract with Vail under Illinois law

if ever a decision gratuitously displaced state by federal

jurisdiction, it is this decision

| do not submit with as good a grace as my brethren to

the tyranny of the syllogism. We can break the chain of

reasoning at any of three links. We can hold that the interest

created by a contract between a school board and a non-

academic employee for a short fixed term is not “property”

within the meaning of the Fourteenth Amendment: that a

simple breach of contract does not deprive” the employee

of his right; or that there was no denial of due process of

law

Although the word “property” was broadly understood in

the eighteenth century—-Madison wrote in 1792 that it ‘“em-

braces everything to which a man may attach a value and

have a right," Essay on Property, in 6 Madison, Writings 101

(Hunt ed. 1906)—the due process clause of the Fifth

Amendment used the word in a narrower sense and as-

signed its broader connotations to ‘life’ and ‘liberty.’ Madi-

son wrote that a man “has a property of peculiar value in

his religious opinions, and in the profession and practice

dictated by them. He has a property very dear to him in the

safety and liberty of his person. He has an equal property

in the free use of his faculties and free choice of the objects

App. 30

on which to employ them.” /d. Madison would not have re-

garded a simple breach of contract as a deprivation of

property in the exalted sense in which he was using the term

and he could not have thought it a deprivation of property

in the narrower lawyer's sense, since in the eighteenth cen-

tury, aS today, contract rights and property rights were dis-

tinct. See 2 Blackstone, Commentaries on the Laws of Eng-

land 442-70 (1766), 3 id. at 153-66 (1768). The Constitution

distinguishes them explicitly, as one can see by comparing

the contracts clause in Article |, section 10, with the due pro-

cess and just compensation clauses of the Fifth Amena-

ment. And if property means the same thing in the due pro-

cess and just compensation clauses, a contract right cannot

possibly be a property right, because the government does

not Nave to pay just compensation for breaking a contract.

Until the Fourteenth Amendment was enacted there were

few decisions interpreting the due process clause of the

Fifth Amendment, and none dealt with the status of a mere

contract right. There is no basis for thinking that the framers

of the Fourteenth Amendment. in applying the due process

Clause of the Fifth Amendment verbatim to state action,

wanted to give ‘property’ a brand new meaning. Of course

many Fourteenth Amendment due process cases have in-

volved “liberty of contract’, but that is a different animal

from specific contract rights. If the State of Illinois forbade

Mr. Vail to work as a football coach it would be interfering

with his liberty of contract, cf. Aligeyer v. Louisiana, 165 U.S.

978, 591 (1897)—that is, with property in the Madisonian

sense—but that is not what it did, which is why cases like

Allgeyer and like Hampton v. Mow Sun Wong, 426 U.S. 88,

102 (1976), are irrelevant. Not even in the palmiest days of

liberty of contract was it thought that a state infringed that

liberty by breaking a contract with one of its employees or

suppliers. See Hartigan v. Board of Regents, 49 W. Va. 14,

38 S.E. 698 (1901). The spirit of those times is well Captured

by a staternent made by the Supreme Court of Tennessee

in reference to the most famous public school teacher in

App. 31

American history: “in dealing with its own employees en-

gaged upon its own work, the state is not hampered by the

limitations of. . the Fourteenth Amendment to the Constitu-

tion of the United States.’ Scopes v. State, 154 Tenn. 105.

112, 289 SW. 363, 365 (1927)

Perry v. Sindermann. 408 U.S. 593, 599, 601-02 (1972),

is Often thought to have raised a contract right to the level

of a constitutional property right. its companion case, Board

of Regents v. Roth, 408 US. 564, 577-78 (1972), held that

if a state college teacher had no right under state law to

continued employment he had no property right under the

due process Clause. But Sindermann alleged that he had an

implicit right to tenure under state law, and the Court re-

manded the case for a trial of that allegation

No doubt the Court believed that if Sindermann had ten-

ure under state law he could not be discharged without due

process of law, though this was assumed rather than ar-

gued. But the Court did not thereby equate contract rights

with property rights having their source in contracts. Sinder-

mann ‘alleged that [his interest in continued employment at

Odessa Junior College}, though not secured by a formal

contractual tenure provision, was secured by ano less bind-

ing understanding fostered by the college administration. In

particular, [he] alleged that the college had a de facto ten-

ure program, and that he had tenure under that program.”

408 US. at 599-600 (emphasis added). The important thing

was not that a contract was alleged to have been broken

but that tenure—arguably a form of property, a form having

its Source, as much property has its source, in contract—

was alleged to have been destroyed

A contract that gives a teacher the right to be employed

till he retires is special, for unless he is old or rich the pre-

sent value of his tenure right is probably his biggest asset

The Supreme Court, in dealing with recipients of welfare

benefits, had held before Sindermann that Statutory entitle-

ments of indefinite duration have enough attributes of con-

App. 32

ventional property to be protected by the due process

clause. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 261-62

(1970). Sindermann and the welfare cases extend to indi-

viduals who lack substantial assets of a conventional sort

the protection of the due process clause for the unconven-

tional assets they have.

The present case involves a two-year implied contract

that when terminated had only one year to run. It is true that

the difference between term and tenure contracts is one of

degree and that if a teacher had only one year to go to re-

tirement his stake in his tenure contract would be no greater

than Vail’s. But this is only to say that some contract rights

are worth more than some property rights; it does not elimi-

nate the distinction between tenure as property and a mere

contract right. It is also true that Hostrop v. Board of Junior

College Dist No. 515, 471 F.2d 488, 494 (7th Cir. 1972), ex-

tended Sindermann to term employment contracts. But it did

sO uncritically, without discussion of the distinction | have

just noted: and since, like Roth and Sindermann, it involved

a teacher rather than an athletic coach, it is distinguishable

from the present case by reference to a long history of judi-

cial solicitude for the interests of teachers—especially col-

lege teachers, the plaintiffs in Roth, Sindermann, and Hos-

trop.

Daniel Webster argued to the Supreme Court in the

Dartmouth College case that ‘professors have freeholds in

their offices; subject only to be removed, by the trustees

for good cause No description of private property has

been regarded as more sacred than college livings. They

are the estates and freehold of a most deserving class of

men ..” Trustees of Darmouth College v. Woodward, 17

US. (4 Wheat) 518, 583-84 (1819). See also Hartigan v

Board of Regents, supra, 49 W. Va. at 30-60, 38 SE. at 709-

18 (dissenting opinion). The idea that teachers have a spe-

Cial Claim to judicial protection now goes by the name of

academic freedom, ‘a concept fashioned from other con-

stitutional rights, including the First Amendment and due

App. 33

process rights of faculty to avoid censure for the views they

teach and espouse.” Gray v Board of Higher Educ., City

of NY., 692 F.2d 901, 309 (2d Cir. 1982): see also cases

cited at id, n. 14; Martin v. Helstad, 699 F.2d 387, 391 (7th

Cir. 1982): id at 392-99 (concurring opinion). Most cases

(again including Roth. Sindermann, and Hostrop) in which

teachers have mounted constitutional challenges to their

dismissal have involved alleged deprivations of freedom of

speech—one of the liberties protected by the due process

clause—as well as of a property right in continued employ-

ment. Although the Supreme Court in Roth and Sindermann,

and a panel of this circuit in Hostrop. treated these as dis-

tinct rights, this may have been—-though | admit | am

speculating—because protection against arbitrary dismissal

was thought necessary to prevent infringements of freedom

of academic speech that would be too difficult to prove. The

dismissal of a football coach does not endanger academic

freedom

The First Circuit's recent decision in Casey v. DePetrillo,

697 F. 2d 22 (1st Cir. 1983) (per Curiam), which upheld the

dismissal of a public school employees’ section 1983 suit

against local school officials, shows the difference between

this case and Hostrop. The suit alleged that ‘the defendants

injured [the plaintiffs] by breaching the plaintiffs’ employ-

ment contracts,” id. at 23, and was thus, ‘at bottom, a sim-

ple action for breach of contract for which the state provides

a complete and adequate remedy” and which therefore

“failed to state a claim for relief under federal law,’/0d. There

iS NO indication that the plaintiffs were academic employees

with tenure — but Mr. Vail is not an academic employee with

tenure either

But if Hostrop is indistinguishable from the present case,

then let us overrule Hostrop, a decision of this court, not of

the Supreme Court. The Supreme Court has never equated

tenure with nontenure contracts; and we are not obliged to

read Supreme Court decisions broadly in order to reach

foolish results | plead guilty, though, to Judge Eschbach's

App. 34

charge that | am ‘superimposing a unifying doctrinal thread

onto the cases which would explain their outcomes in a prin-

cipled fashion." | had understood this to be my job

Suppose all this is wrong, however, and Vail’s contraci re-

ally did give him a Fourteenth Amendment property right:

still, he would have a Fourteenth Amendment claim only if

the breach of contract “deprived’ him of that right. Whether

it did depends on the precise content of the right. “Property

interests...are created and their dimensions are defined by

existing rules or understandings that stem from an indepen-

dent source such as state law.’ Board of Regents v. Roth,

supra, 408 U.S. at 577 (emphasis added). So we must de-

termine exactly what right Vail’s contract gave him under the

laws of Illinois.

An employee complaining of a breach of an employment

contract under Illinois law has a right to damages for the

breach, but not a right to specific performance of the con-

tract, Zannis v. Lakeshore Radiologists, Ltd., 73 \ll_ App. 3d

901, 392 NE. 2d 126 (1979), to reinstatement in other

words; and Judge Eschbach points out that this principle

was applied to nontenured teachers in Bressier v. Board of

Educ., 69 Ill. 2d 191, 370 N.E.2d 1050 (1977). As Holmes.

writing of contract rights in general, said, “The only universal

consequence of a legally binding promise is, that the law

makes the promisor pay damages if the promised event

does not come to pass. In every case it leaves him free from

interference until the time for fulfillment has gone by, and

therefore free to break his contract if he chooses." The Com-

mon Law 301 (1881). Vail never had a right to performance

of the contract — a right to force the school board to keep

him. He had only a right to performance or damages for

nonperformance. The state would have deprived Vail of this

disjunctive right only if it had refused to pay him damages

for breaking its contract, and it has not refused; if he can

prove that the contract was broken, the state through its

court system will give him damages. See Ill. Rev. Stat. 1981,

ch. 122, § 10-2; Jewell v. Board of Educ, 19 Ill. App. 3d

App. 35

1091, 312 NE 2d 659 (1974): Piper v. Board of Trustees, 99

Il. App. 3d 752, 426 N.E.2d 262 (1981): cf. Powell v. Jones,

56 Ill. 2d 70, 77-78, 305 N.E.2d 166, 169-70 (1973).

| am not arguing, as | may seem to be, that Vail failed to

exhaust his remedies under state law. | accept that exhaus-

tion normally is not required in section 1983 cases, and is

not required here. A requirement of exhaustion would mean

that Vail had to sue first in state court but if he lost he could

then sue in federal court, like a state prisoner seeking fed-

eral habeas corpus. This would assume, however, that the

state had deprived Vail of a constitutionally protected inter-

est such as property, and that the only question was

whether he could complain of that deprivation in federal

court before seeing what relief he could get in state court.

But since the right Vail was allegedly deprived of is just a

right to a particular remedy — damages — he cannot comp-

lain that he has been deprived of that right unless the state

fails to provide him with the remedy, and if there is no depri-

vation, there is no cause of action under section 1983. As

there is no suggestion that the State of Illinois does not pro-

vide remedies in its courts for breaches of contracts with

public school employees, | do not see how we can conclude

that Vail has been deprived of any right given him by the

state, or even that he has alleged such a deprivation.

Concurring in Parratt v. Taylor, 451 U.S. 527 (1981), Jus-

tice Stewart — the author of Roth and Sindermann — asked

hypothetically whether “damages to a person's automobile

resulting from a collision with a vehicle negligently operated

by a state official’ would be “a deprivation of property within

the meaning of the Fourteenth Amendment,” and answered

that it would not be. 451 U.S. at 544-45. He could not have

meant that the automobile was not property; he must have

meant that negligent damage to it would not be a depriva-

tion of property. Justice Powell's concurring opinion in the

same case explains why: “under state law no remedy other

than tort law protects property from interferences caused by

the negligence of others... [T]herefore,.. . the enjoyment

App. 36

of property free of negligent interference is not sufficiently

‘guaranteed’ by state law to justify a due process claim

based on official negligence.” /d. at 549 n. 7. Just as the

State of Illinois has not promised to protect Vail’s property

from negligent harm, but only to give him a damages re-

medy for the harm, it did not promise that the school board

would employ him for the full term of his contract but only

that he would have a damages remedy for breach of con-

tract if it did not. There is no suggestion that the state means

to renege on that promise.

This analysis reinforces my previous point that a contract

right, as such, is not property. We infer the existence of a

property right from the remedies the law gives to protect it

A right protected by an injunction, by specific performance.

or by criminal penalties is a property right. But if the only

remedy the law provides for some wrong is damages, we

speak of a liability rule rather than of a property right. See

Calabresi & Melamed, Property Rules, Liability Rules, and

Inalienability; One View of the Cathedral, 85 Harv. L. Rev.

1089, 1092, 1125 (1972). You have a property right against

(most) deliberate takings of your car but not against its

being demolished in an accidental collision with another

car, even if the driver of that car is negligent, and you are

not; your only right is to damages. No more has the employ-

ee under an employment contract the right to ask a court

of equity or the criminal justice authorities to prevent a

breach of the contract. His only right, like that of a victim

of negligence, is to have the employer held liable for dam-

ages, and it is not a property right.

But even if Vail had a property right and the state de-

prived him of it, his claim fails because there was no denial

of due process. Due process does not always require that

you get a hearing before rather than after your property is

taken. Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir.

1982). To hold that the deprivation in this case required a

hearing in advance is to require the states in the name of

the Constitution to set up special tribunals to adjudicate all

App. 37

contract disputes (at the very least all employment-contract

disputes) that might result in a”state agency's terminating

a coniract. Vail could have sued the school board in state

court for breach of contract, as | have already pointed out;

and if he had done so he would have received a hearing

that satisfied the requirements of due process.

What indeed would be the purpose of a ‘predeprivation”

hearing in this case? Since state law allows the school

board to break its contracts with probationary employees

such as Vail for any reason or no reason, provided only that

it is willing to pay the employee's damages, the employee

has little to gain from such a hearing. It is not as if Vail had

been fired for cause, and there was a question whether he

really had given cause; then a hearing might help. The only

hearing that could help him would be a hearing for the pur-

pose of adjudicating that there was a breach of contract and

computing his damages if a breach was found. He can get

that kind of hearing in state court by suing for breach of con-

tract; he cannot get it from the school board.

In deciding what process is due, and specifically whether

a predeprivation hearing is required or whether a postdepri-

vation hearing is good enough, the courts consider as one

factor the gravity of the deprivation complained of. See.

e.g., Mathews v. Eldridge, 424 U.S. 319, 335 (1976): Sutton

v. City of Milwaukee, supra, 672 F.2d at 645-46. But it bor-

ders on the melodramatic to describe what happened to

Vail, in Judge Eschbach's words, as “termination of a per-

son's livelihood..." Vail was fired in breach of a contract

The wrong done to him was a type of wrong that traditionally

has not been thought so grievous that it cannot be

adequately remedied by a suit for damages. That is all he

is suing for in federal court. As long as he can seek dam-

ages in a suit in a state court that is not alleged to harbor

prejudices against this class of litigants or to follow unfair

or inadequate procedures, | cannot see that the state has

treated him in the arbitrary fashion that one associates with

App. 38

denying a person due process of law

In suggesting that common law remedies may, in some

cases of alleged deprivation of property rights, provide all

the process that is due, | am not making a new argument

Parratt v. Taylor, 451 U.S. 527 (1981), held that state prison

officers had not denied a prisoner due process by negli-

gently losing his hobby kit. He had an adequate common

law remedy, which was all the process that was due him

since ‘the deprivation did not occur as a result of some es-

tablished state procedure. Indeed, the deprivation occurred

as a result of the unauthorized failure of agents of the state

to follow established state procedure.” /d. at 543. In this

case too, any deprivation of property was due to the defen-

dants’ “unauthorized failure to follow established state

procedures” regarding the honoring of contracts, and the

plaintiff had an adequate common law remedy, as is shown

by the fact that the district court awarded Vail just his com-

mon law contract damages. In contrast, in Logan v. Zimmer-

man Brush Co., 102 S. Ct. 1148 (1982), the common law re-

medy was inadequate. /d. at 1158.

| admit that the facts of Parratt are very different from

those of this case; and maybe Judge Wood is right in think-

ing that Logan has clipped Parratt's wings. There is un-

doubted tension between Parratt and the case that made 42

U.S.C. § 1983 what it is today. Monroe v. Pape, 365 US.

167 (1961). Monroe held that police brutality was actionable

under section 1983 regardless of what tort remedies the vic-

tim might have against the police under state law. (“The

complaint alleges that 13 Chicago police officers broke into

petitioners’ home in the early morning, routed them from

bed, made them stand naked in the living room, and ran-

sacked every room, emptying drawers and ripping mattress

covers. It further alleges that Mr. Monroe was then taken to

the police station and detained on ‘open charges’ for 10

hours, while he was interrogated about a two-day-old mur-

der, that he was not taken before a magistrate, though one

was accessible, that he was not permitted to call his family

App. 39

or attorney, that he was subsequently released without crim-

inal charges being preferred against him. It is alleged that

the officers had no search warrant and no arrest warrant

_...'' Id. at 169). Though it is too soon to know where the

line will be drawn between Parratt and Monroe, or even

whether both decisions will endure, it is at least possible that

simple breaches of contract (assuming, as | do not, that

they automatically cause ‘“deprivations’ of “property”) will

be held to fall on the Parratt side. Wnen Monroe was de-

cided, state tort remedies against police officers were con-

sidered worthless. See Foote, Tort Remedies for Police Vio-

lations of Individual Rights, 39 Minn. L. Rev. 493 (1955)

That was a reason for ignoring them in deciding what pro-

cess was due. My brethren do not question the effective-

ness of state contract remedies.

Another basis for distinguishing Monroe and Parratt is

suggested in Duncan v. Poythress, 657 F.2d 691, 704-05

(Sth Cir. 1981), cert. granted, 102 S. Ct. 1426 -1982), and

in Judge Wood's decision for a panel of this circuit in Woff-

Lillie v. Sonquist, 689 F.2d 864 (7th Cir. 1983): Parratt appli-

es where the only violation of the due process clause of the

Fourteenth Amendment is a denial of due process in its orig-

inal sense of proper procedure, Monroe where the violation

involves a breach of one of the guarantees of the Bill of

Rights (in Monroe itself, the Fourth Amendment, see 365

U.S. at 171) that have been applied to the states through

the due process clause of the Fourteenth Amendment. 689

F 2d at 871-72. The Bill of Rights protects the interests of

unpopular or vulnerable groups and it is natural to be con-

cerned about the adequacy of their legal remedies. Football

coaches do not comprise such a group and Vail makes no

claim under the Bill of Rights

No doubt Parratt can be read even more narrowly than

| have done--maybe so narrowly as not to affect this case

at all. There is an argument for reading Supreme Court deci-

sions narrowly: it is a busy court and cannot foresee and

be taken to approve every potential application of its opin-

App. 40

ions if they are read broadly. But why my brethren choose

to read a recent Supreme Court decision (Parratt) narrowly,

and on older one (Sindermann) broadly, eludes me. If Sin-

dermann were construed as narrowly as Judge Wood's and

Judge Eschbach's opinions in this case construe Parratt

then Sindermann clearly would not be controlling either

If my brethren think Parratt a sport, they should say so,

rather than try to distinguish it on factitious grounds, such

as that it applies only to negligent deprivations of property,

as argued by Judge Eschbach. That reading of Parratt is

inconsistent with several recent decisions of this court, in-

cluding Judge Wood's decision of a few weeks ago in Wo/f-

Lillie. That was not a case of negligent deprivation. Nor was

Ellis v. Hamilton. 669 F.2d 510 (7th Cir. 1982), which Wolf-

Lillie cites for the proposition that Parratt ‘requires federal

courts to consider the adequacy and availability of remedies

under state law before concluding that a deprivation of life,

liberty. or property violates due process of law.” 689 F.2d

at 871. Wo/f-Lillie involved a pervasive pattern of executing

invalid writs of restitution” by Sheriff Sonquist’s deputies with

his knowledge. /d. at 870. Judge Wood did not call this con-

duct “negligent.” He could not have; the conduct was inten-

tional tortfeasing.

Nor can Parratt be easily distinguished on the ground

that, in Judge Eschbach’s words, the conduct of the defen-

dants here was not merely “ministerial” or “mindless.” Any

deprivation of Vail’s right resulted from the isolated action

of a single school board; the state was not implicated. That

is another possible difference between this case and Logan

v. Zimmerman Brush Co., supra, where in distinguishing

Parratt the Supreme Court said that “Logan is challenging

not the Commission's error [the Illinois Fair Employment

Practices Commission, corresponding to the school board

in this case], but the ‘established state procedure’ that de-

stroys his entitlement without according him proper pro-

cedural safeguards.” 102 S. Ct. at 1158. True, the members

of the school board in this case are more responsible offi-

App. 41

Cials than the prison employees who lost the hobby kit in

Parratt. But in Flower Cab Co. v. Petitte, 685 F.2d 192 (7th

Cir. 1982), this court applied the principle of Parratt to a

property deprivation by Chicago's Commissioner of Con-

sumer Services. If Judge Eschbach is entitled to ignore

Petitte, not to mention Wo/f-Li/lie and Ellis, | do not see why

| should feel bound by Hostrop

Furthermore, while some breaches of contract are inten-

tional and some others are negligent, nothing in the law of

contracts requires that a breach be either intentional or neg-

ligent to be actionable. A garden-variety breach of contract

is even less culpable than the garden-variety tort involved

in Parratt Breach of contract is a strict-liability concept. Out-

side the limited shelter given by impossibility and related

doctrines, a party who breaks his contract is liable for the

consequences of the breach even if it was due to events

completely beyond his controi—even if it was involuntary,

and so in a sense “mindless " If Parratt confines the victim

of negligent conduct to his remedies (provided they are ad-

equate) under state law. it should likewise confine the victim

of unavoidable conduct

But forget Parratt, and my basic point remains: in a case

of this sort, where one is about as far away as one can get

from the gross police misconduct alleged in Monroe v.

Pape, the requirements of due process are satisfied by the

remedies that the state provides in its courts for breaches

of contract by its schoo! boards. And this is but one of my

grounds for arguing that Vail has no right to relief under 42

U.S.C. § 1983; the others, it will be recalled, are that there

is NO property right at stake in this case and that in any

event there has been no deprivation of such a right. | do

not argue that any of these grounds possesses apodictic

certainty but at least they show that the result in this Case

is Not predestined by existing case law. The Supreme Court

has not decided the question in this case. We do that Court

a disservice to apply its 1972 decisions in Roth and Sinder-

mann to the very different facts of this case. ignoring all that

App. 42

has happened in the law relevant to section 1983 since

then, reaching a result that is contrary to every principle of

federalism and good’sense, and putting the blame on the

Court. | have tried very hard but without success to think of

a reason why a football coach should be allowed to litigate

his contract claim against a school board in a federal district

court. | get no help in this endeavor from being told by

Judge Eschbach that this case is about the ‘termination of

a person's livelihood,’ or by Judge Wood that football

coaches “are generally not second class members of a ba-

lanced school program.” We are witnessing the trivialization

of the Constitution. | regret almost more than | can say that

my brethren’s method of interpreting precedet has led them

to take another step on the road whose terminus is the dis-

placement of the whole of state law into the federal courts

App. 43

EXHIBIT B

(No. 81-2116)

JESSE A. VAIL, Plaintiff, v. BOARD OF EDUCATION OF

PARIS UNION SCHOOL DISTRICT NO. 95,

TERRANCE C. PARKS, CHARLES R. FOX

and BERNIE RINEHART, Defendants.

Opinion filed January 13, 1982

United States District Court for the

Central District of Illinois, Danville Division.

The Hon. Harold A. Baker, Judge, presiding.

Marc J. Ansel, of Erwin, Martinkus, Cole & Ansel, Ltd.,

of Champaign, for plaintiff.

S. Craig Smith, of Dillavou, Overaker, Asher & Smith, of

Paris, for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW,

MEMORANDUM OPINION, AND FINAL ORDER

This is an action for damages and for declaratory and in-

junctive relief brought under the provisions of 42 U.S.C.

§1983. The plaintiff, Jesse A. Vail, was an employee of the

Defendant Board of Education of Paris Union School District

No. 95 during the school term 1980-1981. The plaintiff

claims that the Board of Education, acting under color of

state law, terminated the plaintiff's contract of employment

without cause, without notice, and without hearing in viola-

tion of plaintiff's right to due process of law under the four-

- teenth amendment. The plaintiff also raises pendent claims

under state law. Jurisdiction is vested in the court under the

provisions of 28 U.S.C. §1343 (3).

FINDINGS OF FACT

In June, 1980, the Defendant Board of Education sought

to retain the services of a new athletic director and head

App. 44

football coach. At that time the plaintiff was a resident of

Joliet, Illinois and was employed as supervisor of recreation

and physical education for the Stateville Correctional Center

in Joliet, Illinois under the auspices of the Department of

Corrections of the State of Illinois. The plaintiff was a cer-

tified physical education teacher with over twenty years of

teaching and coaching experience at the high school or col-

lege level

On June 15, 1980, a search committee, representatives

of the Defendant Board of Education, Board members

Robert Wallace and Dyke Davis, Superintendent James

Cherry, and Paris High School Principal Dominic Mar-

chiando, visited with the plaintiff at his residence in Joliet,

Illinois, to discuss his employment as athletic director, dis-

trict physical education coordinator, and head football

coach of the school district. Prior to going to plaintiff's home,

the Board representatives had held a breakfast meeting with

the plaintiff and visited his place of employment at the

Stateville Correctional Center.

In addition to talking about the nature of the duties the

plaintiff would be expected to perform and his salary, dis-

cussion between the search committee and the plaintiff was

also had concerning the length of the term of the plaintiff's

proposed contract. All the witnesses agree that the plaintiff

was concerned as to how long it would take for a new athle-

tic director to correct the deficiencies that then existed in

the Paris School District's athletic program.

The witness Davis recalled that discussion was had in the

search committee concerning the length of the term of the

contract that could be proposed to plaintiff. The plaintiff was

concerned about the term of the contract and said that that

would be a factor in his deciding whether to accept the pos-

ition if it was offered. The search committee said that the

length of the term of the contract would be a matter decided

by the full Board and that the committee could make no

commitment beyond the one year statutory term of a prob-

App. 45

ationary teacher.

On June 24, 1980, the Board met in special session to-

gether with the superintendent, James Cherry, and the high

school principal, Dominic Marchiando. At the meeting the

Board unanimously agreed to offer the plaintiff a contract of

employment as athletic director and head football coach.

The witness Davis recounts that at this meeting discussion

was had concerning the term of the contract and Davis tes-

tified it was the concensus of the Board that it would assure

the plaintiff of two years in his position. Board member

McHenry has the same recollection

lt was the Board's intention to renew the one year contract

it offered the plaintiff at the end of the first year. The witness

Davis testified that the superintendent, Dr. Cherry, was told

to make that kind of an offer to the plaintiff.

The witness Davis is confident that discussion was had

by the search committee in Joliet about a two year contract

and explanation was made to the plaintiff that, while the

Board could not offer him more than a one year contract.

it could assure him of extending the contract for a second

year

The position was offered to the plaintiff by Dr. James

Cherry and the plaintiff accepted. He traveled to Paris, exe-

cuted a written contract, and in due course entered into the

performance of his duties

On March 2, 1981, the Board met in public session and

voted 3 to 2 not to renew plaintiff's contract for the ensuing

year. Plaintiff was not given any reason for his termination,

nor was he afforded a hearing in which he could reply to

any purported cause for his termination. The meeting at

which the termination of the plaintiff's contract was voted

upon was a stormy one. Two of the members, Davis and

McHenry, voted against terminating the plaintiff's contract

but the three other Board members present, Parks, Fox and

Rinehart, voted not to renew the contract. Davis and

McHenry reminded the other Board members that a commit-

App. 46

ment had been made to the plaintiff to extend his contract

for two years. The other Board members denied that at the

meeting of March 2, 1981, and denied it in their testimony

and asserted that no such commitment had been made.

| credit the testimony of the witnesses Davis and McHenry

and believe that their recollection of the representations

made to the plaintiff is correct and that recollections of the

other Board members and the testimony of Dr. James

Cherry and Dominic Marchiando is not correct. | am led to

that conclusion not only by the demeanor of the witness

Davis while he testified and the reasonableness of his tes-

timony considered in the light of the case, but also by the

other Board members and administration who testified that

they could not recall that Davis and McHenry took a very

firm position with the Board that the Board had committed

itself to a two year contract. That testimony by the other

Board members and administration seems incredible to me

in light of the emotion and personal feelings that were evi-

dent at the March 2, 1981 meeting. The superintendent, Dr

Cherry, when he testified remembered that the plaintiff when

negotiating had five essential points in connection with his

contract with the school district. The first point was security.

Under all the circumstances of the case it is far more cre-

dible and, | find more likely true than not true, that the Board

made a commitment to the plaintiff to extend his contract

for a second year if he would accept the job in Paris. The

Board may have become dissatisfied with the plaintiff's per-

formance and decided for those reasons, whatever they

might have been, to discharge him. Nothing appears in the

record, however, which would indicate a cause for terminat-

ing the plaintiff's contract other than general dissatisfaction

with the results obtained in the Paris sports program while

the plaintiff was athletic director.

| find it probable and believe in the light of all the cir-

cumstances in the case that the Board did instruct its

superintendent to tell the plaintiff that the Board would ex-

App. 47

tend his contract for an additional year at the conclusion of

the first year. This seems reasonable in light of the emphasis

that was placed on the term of contract in the pre-employ-

ment discussion between Dr. Cherry and the plaintiff, and

Dr. Cherry's recollection that the plaintiff had asked about

a guarantee of renewal. [Dr. Cherry's trial testimony that the

plaintiff had not asked about a guarantee of renewal was im-

peached by his prior statement in a deposition taken in the

course of preparation of the case }

The plaintiff also asserts that in the course of the Board's

discharging him he was defamed. Members of the public

at the meeting demanded to know why the plaintiff was

being discharged and members Davis and McHenry asked

the Board to state reasons. The Board refused to state

reasons but Dr. Davis did say publicly that there was some

talk of the plaintiff “shuffling funds.” The plaintiff at the pub-

lic meeting reminded the Board that he had been promised

a two year contract and explained that the “shuffling funds”

that had been mentioned involved transferring athletic funds

from one account to another with the authority and knowl-

edge of the superintendent.

There is nothing in the evidence that would indicate the

plaintiff was charged with dishonesty or wrongdoing, and |

am not persuaded that it is more probably true than not that

he suffered a defamation which impinged on his ability to

find new employment. He did secure new employment in

Mundelein, Illinois, and there is no testimony that he had any

difficulty in finding new employment because of any state-

ment that had been made about him or his character in the

course of his discharge by the Paris Board.

Nothing in the evidence tends to support the plaintiff's

theory that there was a conspiracy among the individual

App. 48

Board defendants to defraud the plaintiff or to deny him his

constitutional liberties. There is a failure of proof on those

claims.

CONCLUSIONS OF LAW

In the simplest terms, the issue in this case is whether the

plaintiff had a two year or a one year contract. It is apparent

from the evidence that the plaintiff had a commitment for two

years of employment by the defendant schoo! board

In Perry v. Sindermann, 408 U.S. 593, 601 (1971), the Su-

preme Court recognized that a non-tenured teacher might

have a property interest in re-employment although that in-

terest was not formalized in writing. “Explicit contractual

provisions,” the Court noted, ‘may be supplemented by

other agreements implied from ‘the promisor's words and

conduct in the light of the surrounding circumstance.’ Here

the Defendant Board made a commitment to extend the

plaintiffs contract for an additional year and then pro-

ceeded to deny him that property interest without notice,

without hearing, and without stated cause. Since the Defen-

dant Board acted under the color of state law, it worked a

deprivation of property without due process of law and a

violation of 42 U.S.C. §1983 and the plaintiff has a right to

recover consequent damages.

Of the stipulated economic damages the plaintiff claims,

$3,800.00 is for additional living expenses. There is no evi-

dence to support the plaintiff's assertion that these ex-

penses would not have been incurred by him for living had

he remained in his position in Paris, Illinois. Accordingly, |

conclude that the claim for additional living expenses is not

supported by the evidence as resulting from the breach of

contract by the defendant. Accordingly, the stipulated

economic damages of the plaintiff which are allowable are

$19,850.99.

Plaintiff also asserts pendent claims involving interpreta-

tion of state law and the Constitution of the State of Illinois.

App. 49

In light of the findings and conclusions of the court and the

remedy afforded the plaintiff, the court declines to consider

the pendent claims under Illinois law. See Coe v. Bogart,

519 F. 2d 10 (6th Cir. 1975).

Plaintiff also seeks injunctive relief from the court and asks

that he be reinstated in his position as athletic director. The

plaintiff has an adequate remedy at law in money damages

for the breach of contract and denial of property right that

has been worked on him. The court therefore declines to

grant the requested injunctive relief.

IT IS THEREFORE ORDERED that on Count | of the com-

plaint the plaintiff, Jesse A. Vail, have and recover of the de-

fendant, Board of Education of Paris Union School District

No. 95, the sum of Nineteen thousand eight hundred fifty

and 99/100 Dollars ($19,850.99) and costs of suit.

IT IS FURTHER ORDERED that on Count || judgment enter

in favor of the defendants and against the plaintiff.

IT IS FURTHER ORDERED that Counts Ill, IV, V, and VI

of the complaint are dismissed without prejudice.

IT 1S FURTHER ORDERED that judgment enter in favor of

the defendants and against the plaintiff on Count VII.

IT IS FURTHER ORDERED that Count Vill is dismissed

without prejudice.

ENTERED this 13th day of January, 1982.

/s/ Harold A. Baker

Harold A. Baker

United States District Judge

App. 50

EXHIBIT C

(No. 81-2116 — Motion to Dismiss denied. )

JESSE A. VAIL, Plaintiff, v. BOARD OF EDUCATION OF

PARIS UNION SCHOOL DISTRICT NO. 95,

TERRANCE C. PARKS, CHARLES R. FOX

and BERNIE RINEHART, Defendants.

Order filed June 5, 1981.

In the United States District Court for the

Central District of Illinois, Danville Division.

The Hon. Harold A. Baker, Judge, presiding.

Marc J. Ansel, of Zimmerly, Dodd, Ansel & Stout, P.C.,

of Champaign, for plaintiff.

S. Craig Smith, of Dillavou, Overaker, Asher & Smith,

of Paris, for defendants.

ORDER

This is a Civil action in which the plaintiff alleges violations

of due process under the Fourteenth Amendment of the

United States Constitution and Article |, § 2 of the Illinois

Constitution of 1970, fraud, and breach of contract by the

defendants. The plaintiff's complaint alleges that in 1980 the

Board of Education of Paris Union School District No. 95 ex-

tended an offer to the plaintiff for employment to last at least

two years. In reliance upon the board's extension of a two-

year commitment, the plaintiff thereafter terminated his job

with the Department of Corrections, with wnom he had been

employed for ten years, and relocated to Paris, Illinois. Al-

though the plaintiff then signed a contract specifying a term

of employment from July 15, 1980 to June 15, 1981, the

plaintiff states that he was assured when he signed the con-

tract that he would be employed until July 15, 1981

On March 2, 1981, the defendant Board of Education

voted against renewing the plaintiff's contract for an addi-

tional year. The plaintiff maintains that this decision was

App. 51

made without cause and without notice and a hearing in vio-

lation of the plaintiff's rights to due process of law protected

under the Fourteenth Amendment. In addition, the plaintiff

states that at the time of this decision a member of the

Board made statements in public regarding the plaintiff

which implied that the plaintiff had engaged in wrongful

conduct. Since the plaintiff was not afforded notice of these

allegations and a hearing at which he could respond to

these ctatements, the plaintiff asserts a violation of due pro-

cess under the Fourteenth Amendment. State constitutional

claims, allegations of fraud, and allegations of breach of

contract are also contained in the plaintiff's complaint

The defendants have moved to dismiss the plaintiff's com-

plaint on the basis of a lack of subject matter jurisdiction.

The defendants maintain that there exists no federal ques-

tion jurisdiction under 28 U.S.C. § 1343 (3) since the plaintiff

had no property interest in continued employment with the

defendant school board which would entitle the plaintiff to

due process protection. The defendants’ position is based

on their contention that the plaintiff was a probationary em-

ployee not entitled to the procedural safeguards of prior

notice and a hearing before the decision to terminate his

employment was made.

The plaintiff's complaint, however, does not state that the

plaintiff was hired on a probationary basis, but rather that

a definite commitment was made by the defendants to em-

ploy the plaintiff for at least two years. The Supreme Court

in Perry v. Sindermann, 408 U.S. 593, 601 (1972) recog-

nized that a property interest might exist by virtue of “mutu-

ally explicit understanding that supports his claim of entitle-

ment to the benefit,” rejecting the notion that a property in-

terest in continued employment must have a basis in explicit

contractual or tenure provisions. Such “mutually explicit un-

derstandings” have been set forth in the plaintiff's com-

plaint. Since the plaintiff's uncontroverted factual allegations

must be accepted as true for the purpose of this motion to

dismiss, Stern v. United States Gypsum, Inc., 547 F.2d

App. 52

1329, 1332 (7th Cir. 1977), the plaintiff has described suffi-

cient facts indicating the existence of a property interest to

withstand the defendants’ motion to dismiss.

IT IS THEREFORE ORDERED that the defendants’ motion

to dismiss be, and hereby is, denied.

ENTER this 5th day of June, 1981.

/s/ Harold A. Baker

Harold A. Baker

United States District Judge

App. 53

EXHIBIT D

(No. 81-2116 — Motion to Dismiss.)

JESSE A. VAIL, Plaintiff, v. BOARD OF EDUCATION OF

PARIS UNION SCHOOL DISTRICT NO. 95,

TERRANCE C. PARKS, CHARLES R. FOX

and BERNIE RINEHART, Defendants.

Motion filed May 18, 1981.

In the United States District Court for the

Central District of Illinois, Danville Division.

The Hon. Harold A. Baker, Judge, presiding.

Marc J. Ansel, of Zimmerly, Dodd, Ansel & Stout, P.C.,

of Champaign, for plaintiff.

S. Craig Smith, of Dillavou, Overaker, Asher & Smith,

of Paris, for defendants.

MOTION TO DISMISS

FOR LACK OF JURISDICTION

Defendants, BOARD OF EDUCATION OF PARIS UNION

SCHOOL DISTRICT NO. 95, TERRANCE C. PARKS,

CHARLES R. FOX and BERNIE RINEHART, by and through

their attorneys, Dillavou, Overaker, Asher and Smith, move

the Court to dismiss this action, and, as grounds for such

motion, the Defendants show that the Court has no jurisdic-

tion over the subject matter of this action in that:

1. Plaintiff and all Defendants are citizens of the same

state.

2. The matters set forth and alleged in the Complaint are

insufficient to confer jurisdiction of the Court under the provi-

sions of Title 28 of the United States Code.

3. The allegations of the Complaint attempt to circumvent

jurisdictional requirements of this Court to bring the matter

under provisions of the laws of the United States concerning

federal question jurisdiction and are insufficient to confer

App. 54

such jurisdiction.

WHEREFORE, the Defendants pray that the Court enter

an order dismissing Plaintiff's Complaint with prejudice and

for such other and further relief as may be proper in the

premises.

BOARD OF EDUCATION

OF PARIS UNION SCHOOL

DISTRICT NO. 95,

TERRANCE C. PARKS,

CHARLES R. FOX and

BERNIE RINEHART,

Defendants

DILLAVOU, OVERAKER,

ASHER & SMITH

BY: /s/ S. Craig Smith

Their Attorney

App. 55

EXHIBIT E

Constitution of the United States,

Amendment 14, Section 1.

42 U.S.C. § 1983.

Chapter 122, Section 24-11,

Iilinois Revised Statutes (1981).

Chapter 122, Section 24-12,

Iilinois Revised Statutes (1981).

Fourteenth Amendment Constitution of the United

States

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and

subject to the jurisdiction therof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law: nor deny to any person within its juris-

diction the equal protection of the laws

Chapter 42 — Public Health and Welfare,

42 United States Code § 1983

§ 1983. Civil action for deprivation of rights

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

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

District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law,

App. 56

suit in equity, or other proper proceeding for redress. For

the purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered

to be a statute of the District of Columbia

Chapter 122, Section 24-11,

Illinois Revised Statutes (1981)

24.11. Boards of education — Boards of school inspec-

tors — Contractu?! continued service

§ 24-11. Boaras of Education — Boards of School Inspec-

tors — Contractual continued service. As used in this and the

succeeding Sections of this Article, ‘teacher’ means any or

all school district employees regularly required to be cer-

tified under laws relating to the certification of teachers,

“poard” means board of directors, board of education or

board of school inspectors, as the case may be, and

“school term’ means that portion of the school year, July 1

to the following June 30, when school is in actual session.

This section and Sections 24-12 through 24-16 of this Article

apply only to school districts having less than 500,000 in-

habitants.

Any teacher who has been employed in any district as a

full-time teacher for a probationary period of 2 consecutive

school terms shall enter upon contractual continued service

unless given written notice of dismissal stating the specific

reason therefor, by registered mail by the employing board

at least 60 days before the end of such period. For the pur-

pose of determining contractual continued service, the first

probationary year shall be any full time employment from a

date before November 1 through the end of the school year.

lf, however, a teacher has not had one school term of full-

time teaching experience before the beginning of such

probationary period, the employing board may at its option

extend such probationary period for one additional school

term by giving the teacher written notice by registered mail

App. 57

at least 60 days before the end of the second school term

of the period of 2 consecutive school terms referred to

above. Such notice must state the reasons for the one year

extension and must outline the corrective actions which the

teacher should take to satisfactorily complete probation.

Any full-time teacher who is completing the first year of

the probationary period described in the preceding para-

graph, or any teacher employed on a full-time basis not later

than January 1 of the school term, shall receive written

notice from the employing board at least 60 days before the

end of any school term whether or not he will be re-employ-

ed for the following school term. If the board fails to give

such notice, the employee shall be deemed reemployed,

and not later than the close of the then current school term

the board shall issue a regular contract to the employee as

though the board had reemployed him in the usual manner

Contractual continued service shali cease at the end of

the school term following the 70th birthday of any teacher,

and any subsequent employment of such a teacher shall be

on an annual basis.

Contractual continued service shall continue in effect the

terms and provisions of the contract with the teacher during

the last school term of the probationary period, subject to

this Act and the lawful regulations of the employing board.

This Section and succeeding Sections do not modify any

existing power of the board except with respect to the pro-

cedure of the discharge of a teacher and reductions in sal-

ary as hereinafter provided. Contractual continued service

status shall not restrict the power of the board to transfer

a teacher to a positiion which the teacher is qualified to fill

or to make such Salary adjustments as it deems desirable,

but unless reductions in salary are uniform or based upon

some reasonable classification, any teacher whose salary is

reduced shall be entitled to a notice and a hearing as

hereinafter provided in the case of certain dismissals or re-

movals.

App. 58

The employment of any teacher in a special education

program authorized by Section 14-1.01 through 14-14.01, or

a joint educational program established under Section 10-

22 31a, shall be under this and the succeeding Sections of

this Article, and such employment shall be deemed a con-

tinuation of the previous employment of such teacher in any

of the participating districts, regardless of the participation

of other districts in the program. Any teacher employed as

a full-time teacher in a special education program in which

2 or more school districts participate for a probationary

period of 2 consecutive years shall enter upon contractual

continued service in each of the participating districts, sub-

ject to this and the succeeding Sections of this Article, and

in the event of the termination of the program shall be eligi-

ble for any vacant position in any of such districts for which

he is qualified

Chapter 122, Section 24-12,

Illinois Revised Statutes (1981)

24-12. Removal cor dismissal of teachers in contractual

continued service

§ 24-12. Removal or dismissal of teachers in contractual

continued service. If a teacher in contractual continued ser-

vice is removed or dismissed as a result of a decision of

the board to decrease the number of teachers employed by

the board or to discontinue some particular type of teaching

service, written notice shall be given the teacher by regis-

tered mail at least 60 days before the end of the school

term, together with a statement of honorable dismissal and

the reason therefor. and in all such cases the board shall

first remove or dismiss all teachers who have not entered

upon contractual continued service before removing or dis-

missing any teacher who has entered upon contractual con-

tinued service and who is legally qualified to hold a position

currently held by a teacher who has not entered upon con-

tractual continued service. As between_teachers who have

App. 59

entered upon contractual continued service, the teacher or

teachers with the shorter length of continuing service with

the district shall be dismissed first unless an alternative

method of determining the sequence of dismissal is estab-

lished in a collective bargaining agreement or contract be-

tween the board and a professional faculty members’ or-

ganization and except that this provision shall not impair the

operation of any affirmative action program in the district, re-

gardiess of whether it exists by operation of law or is con-

ducted on a voluntary basis by the board. Any teacher dis-

missed as a result of such decrease or discontinuance shall

be paid all earned compensation on or before the third busi-

ness day following the last day of pupil attendance in the

regular school term. If the board has ary vacancies for the

following school term or within one calendar year from the

beginning of the following school term, the positions thereby

becoming available shall be tendered to the teachers so re-

moved or dismissed so far as they are legally qualified to

hold such positions. Whenever the number of honorable dis-

missal notices based upon economic necessity exceeds 5,

or 150% of the average number of teachers honorably dis-

missed in the preceding 3 years. whichever is more, then

the board shall hold a public hearing on the question of the

dismissals. Following the hearing and board review the ac-

tion to approve any such reduction shall require a majority

vote of the board members.

lf a dismissal or removal is sought for any other reason

or Cause, including those under Section 10-22.4, the board

must first approve a motion containing specific charges by

a majority vote of all its members. Unless the teacher within

20 days requests in writing of the board that no hearing be

scheduled, the board shall schedule a hearing on those

charges before a disinterested hearing officer on a date no

less than 30 nor more than 60 days after the enactment of

the motion. Written notice of such charges shall be served

upon the teacher at least 21 days before the hearing date.

Such notice shall contain a bill of particulars. The secretary

App. 60

of the school board shall forward a copy of the notice to the

State Board of Education. Within 10 days after receiving this

notice of hearing, the State Board of Education shall provide

a list of 5 prospective, impartial hearing officers. Each per-

son on the list must be accredited by a national arbitration

organization. No one on the list may be a resident of the

school district. The Board and the teacher or their legal rep-

resentatives within 5 days shall alternately strike one name

from the list until only one name remains. The teacher shall

have the right to proceed first with the striking. The State

Board of Education shall promulgate uniform standards and

rules of procedure for such hearings. The per diem allow-

ance for the hearing officer shall be paid by the State Board

of Education and may not exceed $250. The hearing officer

shall hold a hearing and render a final decision. The hearing

shall be public at the request of either the teacher or the

board. The teacher has the privilege of being present at the

hearing with counsel and of cross-examining witnesses and

may offer evidence and witnesses and present defenses to

the charges. The hearing officer may issue subpoenas re-

quiring the attendance of witnesses and, at the request of

the teacher against whom a charge is made or the board.

shall issue such subpoenas, but the hearing officer may limit

the number of witnesses to be subpoenaed in behalf of the

teacher or the board to not more than 10. All testimony at

the hearing shall be taken under oath administered by the

hearing officer. The hearing officer shall cause a record of

the proceedings to be kept and shall employ a competent

reporter to take stenographic or stenotype notes of all the

testimony. The costs of the reporter's attendance and ser-

vices at the hearing shall be paid by the State Board of Edu-

cation. Either party desiring a transcript of the hearing shall

pay for the cost thereof. If in the opinion of the board the

interests of the school require it, the board may suspend the

teacher pending the hearing, but if acquitted the teacher

shall not suffer the loss of any salary by reason of the sus-

pension

App. 61

Before setting a hearing on charges stemming from

causes that are considered remediable, a board must give

the teacher reasonable warning in writing, stating specific-

ally the causes which, if not removed, may result in charges.

The hearing officer shall, with reasonable dispatch, make a

decision as to whether or not the teacher shall be dismissed

and shall give a copy of the decision to both the teacher

and the school board. The decision of the hearing officer is

final unless reviewed as provided in Section 24-16 of this

Act. In the event such review is instituted, any costs of pre-

paring and filing the record of proceedings shall be paid by

the board

If a decision of the hearing officer is adjudicated upon re-

view or appeal in favor of the teacher, then the trial court

shall order reinstatement and shall determine the amount for

which the board is liable including but not limited to loss of

income and costs incurred therein.

Any teacher who Is reinstated by any hearing or adjudica-

tion brought under this Section shall be assigned by the

board to a position substantially similar to the one which that

teacher held prior to that teacher's suspension or dismissal.

If, by reason of any change in the boundaries of school

districts, or by reason of the creation of a new school dis-

trict, the position held by any teacher having a contractual

continued service status is transferred from one board to the

control of a new or different board, the contractual con-

tinued service status of such teacher is not thereby lost, and

such new or different board is subject to this Act with re-

spect to such teacher in the same manner as if such teacher

were its employee and had been its employee during the

time such teacher was actually employed by the board from

whose control the position was transferred.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.