Amicus Brief — Board of Education v. Vail

[ Office Supreme Court, U

FIL RE es.

ED

No. 83-87 DEC 16 1983

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,

Vv.

JESSE A. VAIL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR THE

NATIONAL EDUCATION ASSOCIATION AND

THE AMERICAN CIVIL LIBERTIES UNION

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

CHARLEs S. SIMS MICHAEL H. GOTTESMAN *

AMERICAN CIVIL LIBERTIES ROBERT M. WEINBERG

UNION FOUNDATION PETER O. SHINEVAR

1382 West 48rd Street BREDHOFF & KAISER

New York, NY 10036 1000 Connecticut Ave., N.W.

(212) 944-9800 Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® Ee «

STEVAS.,

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .........0cssecessssserssseesees

INTRODUCTION AND SUMMARY OF ARGU-

ARGUMENT .......... altansieainees Mdipiialacicbsnieenrererstacnssens

I.

II.

TERMINATION OF A PUBLIC SCHOOL

TEACHER'S EMPLOYMENT IN MID-TERM

OF A TWO-YEAR CONTRACT IS A DEPRI-

VATION OF THE TEACHER'S PROPERTY

ect ceacabsocaeneevnio

THE DUE PROCESS CLAUSE REQUIRES

THAT A PUBLIC SCHOOL TEACHER BE

AFFORDED NOTICE AND AN OPPORTU.-

NITY TO BE HEARD BEFORE THE

TEACHER IS DEPRIVED OF HIS PROP.

ERTY INTEREST IN CONTINUED EM.

PLOYMENT ......... Slaidiabenitinieioeessetircseccseene ee

arial acsarrsrasasesereccerecoeeaesscorveseveosecevcoesees

Page

2

13

18

il

TABLE OF AUTHORITIES

Cases Page

Allen v, Autauga County Board of Education, 685

F.2d 1308 (CALL 1OBB) occccccccccosccocese oi 15

Armstrong v. Manzo, °80 U.S, 545 (19635) ............. 17

Arnett v. Kennedy, 416 U.S, 184 (1974) .......4, 11, 16, 17

Barry v. Barchi, 443 U.S, 55 (1979)........... 16, 17

Bell v. Burson, 492 U.S, 535 (1971) ..... : 17

Bessler v. Board of Education, 69 Ill, 2d 191, 870

N.E, 2d 1950 (1977) . l Aa eens 14-15

Bishop v, Wood, 426 U, S, 34) (1976) .. sg 4,13

Board of Regents vy, Roth, 408 U.S, 564 (1972) 4,17

Boddie v, Connecticut, 401 U.S. 871 (1971) 0.0... 17

Coe v. Armour Fertilizer Works, 2837 U.S, 413

PIPUED csncrsticcoendelaiouniice ee er ic ae ~ 17

Connell v. Higyvinbotham, 403 U Ss. 207 (1971). 4

Fuentes v, Shevin, 407 U.S, 67 (1972) ................ 12

Goss v. Lopez, 419 U.S, 565 (1975) ............. 4

Logan v. Zimmerman Brush Co,, 455 U.S, 422

(1982) . waiah er

Mathews vy, . Eldridge, 424 U, Ss. 319 -_— spacantan 17

Memphis Light, Gas & Water Div, v. Craft, 436

8 Ge hy | Reece Shei or ee ear ea A 12,17

Miller v, Board of Education, 98 Ill. App. 2d 305,

240 N.E, 2d 471 (1968) 2.0... ee RS ek 15

Morrissey v. Brewer, 498 U.S, 471 (1972) ... weatres 18

Parratt v. Taylor, 451 U.S. 527 (1981) ...... ea: 6-7

Perry v. Sindermann, 408 U.S, 598 (1972) ............ 4

School Directors v. Reddick, 77 Ill, 628 (1875)... 14

Vail v. Board of Education, 706 F.2d 1485 (CA7

PNAS SARA R eI OTST eR Acre sec taiececl passim

Vitek v. Jones, 445 U.S. 480 (1980) . ERS 2 11

Wisconsin v. Constantineau, 400 U, S. 433 (1971). 10

Constitution and Statutes

Constitution of the United States, Fourteenth

IIE isch cicceuisntndececiccsinsd cxpannidoddhik hls oe passim

Civil Rights Act of 1871, 42 U.S.C. § 1988... 3

iil

TABLE OF AUTHORITIES—Continued

Miscellancous Page

Annot., BEloments and Measure of Demages in Ac-

tion by Schoolteacher for Wrongful Discharge,

22 A.L.R. 3d 1047 (1968 & Supp. 1982) ............. 15

Calabresi & Melamed, Property Rules, Liability

Rules, and Inaliconability: One View of the

Cathedral, 85 Harv. L. Rev. 1089 (1972) ............ 6-7

Chapman & Hutcheson, Affrition from Teaching

Carevrs, 19 Am, Educ, Res. J, 98 (1982)

5A A. Corbin on Contracts § 1204 (1964)

Jantzen, Why College Studenis Choose to Teach,

J, Tchr, Educ,, March-April 1981, at 45-49 ....... 9

National Commission on Excellence in Education,

A Nation At Risk: The Imperative for Eduea-

tional Reform (April 1988) .......cccccccscecessssrseesees 9

National Education Association Research, Prices,

Budgets, Salaries, and Income (Feb, 1988)........ 4

National Education Association Research, Status

of the American Public School Teacher: 1980-

i REED ascbisstackeiupeenuaatt te eee 9

Restatement (Second) of Contracts (1979)

SMA cracls nicks asavkedspencidvdvccadlaceseaolels Seainite 15

§ 353 . CR Se Vase Per cal od ae eat “hp 15

SEMIIEE vases vaeievssnsdubinsheeesi ie onisiousseivaebicelceneaeie as 14

IN THE

Supreme Court of the Wnited States

OCTOBER TFRM, 1983

No, 83-87

BOARD OF EDUCATION OF PARIS UNION

SCHOOL DISTRICT No, 95, TERRANCE C, PARKS,

CHARLES R, FOX and BERNIE RINEHART,

Petitioners,

Vv.

JESSE A, VAIL,

Respondent,

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR THE

NATIONAL EDUCATION ASSOCIATION AND

THE AMERICAN CIVIL LIBERTIES UNION

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

This brief, amici curiae, is jointly filed by the Na-

tional Education Agsociation (NEA! and the American

Civil Liberties Union (ACLU) with the consent of the

parties, pursuant to the Rules of the Court.

2

INTEREST OF AMICI CURIAE

NEA is a nationwide employee organization, with a

current membership of some 1.7 million members, the

vast majority of whom are employed by public educa-

tional institutions. NEA operates through a network of

affiliated organizations: it has as state affiliates an or-

ganization in each of the 50 States, the District of Colum-

bia and Puerto Rico, and it has approximately 12,000

local affiliates in individual school districts, colleges and

universities throughout the United States. One of the

principal purposes of NEA and its affiliates is to protect

the constitutional rights of teachers, professors and other

educational employees. Because the Court is being asked

to decide issues of vital importance to the effective vindi-

cation of teachers’ constitutional rights, NEA has a sub-

stantial interest in the outcome of this case.

ACLU is a nationwide, non-partisan organization of

over 250,000 members dedicated to preserving the funda-

mental liberties secured by the Bill of Rights. In litiga-

tion throughout the country, ACLU and its affiliates fre-

quently rely on the Due Process Clause to protect individ-

uals against arbitrary or unjustifiable deprivations of

property, a reliance that is threatened by the constricted

view asserted in petitioner’s brief of the protection that

Clause affords.

3

INTRODUCTION AND SUMMARY OF ARGUMENT

This case, brought under 42 U.S.C. § 1983, presents

the question whether—consistent with the Due Process

Clause of the Fourteenth Amendment—a public school

teacher who has a valid employment contract for a term

may be summarily dismissed in mid-term of the contract,

without any pre-dismissal notice of the purported reasons

for the dismissal or opportunity to respond to those rea-

sons. Applying controlling principles that this Court has

established in its decisions, the District Court and the

Court of Appeals concluded that the summary dismissal]

of respondent after only one year of a valid two-year

employment contract deprived him of a property interest

without due process. For that violation, respondent was

awarded consequentia! damages.

In the Court of Appeals, Circuit Judge Posner dis-

sented, saying that the result reached by the majority

was a “trivialization of the Constitution,” 706 F.2d at

1456, and that it could be avoided by re-thinking and

limiting the principles that have underpinned this Court’s

due process jurisprudence. Unwilling to “submit with as

good a grace as my brethren to the tyranny of the syl-

logism,” Judge Posner suggested that “[wle can break

the chain of reasoning at any of three links.” /d. at 1450.

First, Judge Posner posited that an employment con-

tract for » fixed term should not be considered a prop-

erty interest within the meaning of the Fourteenth

Amendment. /d. at 1450-1452. Second, he opined that

even if an employment contract constitutes a property

interest, respondent has not been deprived of that inter-

est; as Illinois provides only monetary damages for the

breach of an employment contract, the contracting em-

ployee has merely a “disjunctive right,” entitling him

either to employment or to contract damages, and as the

Illinois courts had not “refused to pay [respondent] dam-

ages” for the breach of his employment contract, respond-

4

ent has not been deprived of his property interest. Jd. at

1452-1453. Third, Judge Posner suggested that even if

respondent’s property interest were not “disjunctive,”

but rather an interest in continued employment as such

(in which event there would have been a deprivation),

respondent had not been denied due process because a

post-termination lawsuit to recover money damages for

breach of contract, available to him under Illinois law,

is all the process that ought to be required by the Four-

teenth Amendment for that deprivation.

We do not file this brief to demonstrate that this

Court’s prior decisions lead ineluctably to the decision

reached by the majority below. That demonstration has

been ably made in the concurring opinion of Judge Esch-

bach, 706 F.2d at 1441-49. Rather, we file this brief to

address Judge Posner’s dissenting opinion, and to show

that this Court should not abandon established principles

to follow any of the courses Judge Posner has charted.

We do not linger over Judge Posner's first proposition—

that an employment contract is not property—because as

we show in the margin that premise is so fundamentally

at war with the underpinnings of due process juris-

prudence as to be unacceptable on its face.'! We concen-

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 arbitrarily undermined. It is a purpose of the constitu-

tional right to a hearing to provide an opportunity for a person to

vindicate those claims.” Board of Regents v. Roth, 408 U.S. 564,

577 (1972). The Court has therefore recognized as property a pub-

lic employee's “legitimate claim of entitlement to continued employ-

ment absent sufficient cause for discharge,” Goss v. Lopez, 419 U.S.

565, 573 (1975), whether that claim arises from a statute or ordi-

nance, e.g., Arnett V. Kennedy, 416 U.S. 134 (1974), from “an ex-

plicit contractual provision,” Perry v. Sindermann, 408 U.S. 598, 601

(1972), or, as here, from “a clearly implied promise of continued

employment.” Board of Regents v. Roth, 408 U.S. at 577 (1972),

citing Connell Vv. Higginbotham, 403 U.S. 207, 208 (1971); see also

Bishop Vv. Wood, 426 U.S. 341, 344 (1976).

5

trate instead on Judge Posner’s second and third points.

In our view, both are irreparably flawed. Both stem from

the mistaken premise that respondent derived no expecta-

tion from his employment contract beyond the monetary

compensation he was entitled to receive under that con-

tract. It is that premise which enables Judge Posner to

see the contract as “disjunctive” (your job or your

salary', and to see a post-termination lawsuit that can

yield oniy the lost salary as constitutionally adequate

process.”

As we show, salary represents only part of the benefit

that a public school teacher expects to derive from his

contract of employment; the non-monetary benefit of the

contract—the opportunity to actually perform the job—

constitutes a vitally important element of the considera-

tion a teacher expects to receive as part of the bargain.

Once that is recognized, the inadequacies of Judge Pos-

ner’s second and third points become apparent: (1) a

teacher's property interest in his employment contract

cannot properly be considered a “disjunctive right” either

to employment or salary; and (2) a_post-termination

contract action to recover the salary—which affords no

opportunity to the teacher to seek retention of the prom-

ised work itself—is insufficient process when the State

proposes to deprive the teacher of his entitlement to con-

tinued employment.

Judge Posner's suggested “break{s] [in] the chain of

reasoning” cannot be reconciled with this Court's prior

decisions-—decisions which reflect the proper understand-

ing of the concept of property protected by the Four-

teenth Amendment and of the process that is due when

the State proposes to deprive a person of such property.

* As explained infra, n.9, under Illinois law the only “damages”

recoverable in a breach of contract action would be respondent's

lost salary.

6

ARGUMENT

I. TERMINATION OF A PUBLIC SCHOOL TEACH-

ER’S EMPLOYMENT IN MID-TERM OF A TWO-

YEAR CONTRACT IS A DEPRIVATION OF THE

TEACHER’S PROPERTY INTEREST.

Judge Posner posits that respondent’s property inter-

est in continued employment was only a “disjunctive

right”—i.e., a right either to continued employment dur-

ing the term of the contract or to damages if his em-

ployment were improperly terminated (damages that,

under Illinois law, would consist solely of the promised

salary, see n.9, infra). 706 F.2d at 1452-1453. On that

hypothesis, the Board of Education’s termination of re-

spondent’s employment was not a deprivation of his prop-

erty interest, as the State (i.e., its courts) had not “re-

fused to pay him damages” following the Board of Educa-

tion’s termination of his employment. Jd. at 1452.’

* Judge Posner's conception of the disjunctive nature of respond-

ent’s property interest is based in large part on an article in the

field of economic analysis of law. Calabresi & Melamed, Property

Rules, Liability Rules, and Inalienability: One View of the Cathe-

dral, 85 Harv. L. Rev. 1089 (1972), cited in 706 F.2d at 1453.

While Messrs. Calabresi’s and Melamed’s distinction between “‘prop-

erty rules” and “liability rules” may be valuable for the economic

analysis of legal principles, it is of little assistance to the present

constitutional inquiry. As Calabresi and Melamed expressly con-

cede, “most entitlements to most goods are mixed. Taney’s house

may be protected by a property rule in situations where Marshall

wishes to purchase it, [and] by a liability rule where the govern-

ment decides to take it by eminent domain.” /d. at 1093.

But it makes no sense for purposes of the Due Process Clause to

contend that the same tangible thing or intangible interest is ‘“prop-

erty” at some times and “not property” at others. Indeed, in Logan

v. Zimmerman Brush Co., 455 U.S. 422 (1982), even though the

Illinois Supreme Court would have protected the plaintiff's fair

employment cause of action only with a “liability rule” (a separate

tort action for damages), id. at 427-428, 435, this Court concluded

that the fair employment cause of action was a property interest,

id. at 428-432. Similarly, in Parratt v. Taylor, 451 U.S. 527, 536

(1981), the Court did not doubt that Taylor’s hobbykit was “prop-

erty,” even though the State only protected the hobbykit (under

7

Judge Posner's suggestion, however, misconceives the

promise that was made to respondent, and the legitimate

expectations that respondent derived from the contract

that incorporated that promise.

As a factual matter, the Board of Education did not

promise respondent a disjunctive right to employment or

salary. Rather, the District Court found that the Board

of Education had “assure{d] the respondent of fwo years

in his position,” App. 45 (emphasis added}, i.e., that

respondent “had a commitment for two years of employ-

ment by the defendant School Board.” App. 48 (emphasis

added); see also 7°4 F.2d at 1446 ‘Eschbach, J., con-

curring!. And thic assurance of two years in the posi-

tion was worth far more to respondent than a simple

assurance of two years’ salary.

In many categories of public service money is not the

principal attraction. Federal judges, for example, could

earn far more in the private practice of law; they choose

to be judges because of the non-monetary rewards afforded

by this form of public service. They would not deem their

expectations satisfied if they were paid judicial salaries

but denied the opportunity to perform judicial work.

The same point could be made with respect to prosecu-

tors, policemen, social] workers, and many other public

employees.

Similarly, individuals who accept the joys and burdens

of teaching do so for reasons other than money. The

salary typically paid to a public school teacher is only

a fraction of what that individual could earn if he took

a job in another field requiring equivalent education and

Calabresi’s and Melamed’s analysis) with a “liability rule.” The

contested issue in Porratt v. Taylor was not whether the hobby-

kit was “property,” but whether the State-law remedy for its

deprivation provided “due process.” That same issue—whether

or not a State-law remedy provides due process for the deprivation

of a property interest—ultimately arises in this case as well (see

Part II, infra), but that issue cannot be avoided by pretending that

respondent has not lost a property interest.

8

training. For example, in 1981-82, the average starting

salary for a public school teacher with a Bachelor’s De-

gree was $12,769. In contrast, the average starting

salaries in other fields for those with Bachelor’s Degrees

were substantially higher. National Education Associa-

tion Research, Prices, Budgets, Salaries, and Income 22,

Table 20 (February 1983).*

It is evident that individuals who choose to become

teachers are prepared to accept this substantia] earnings

disadvantage because of the non-monetary rewards they

expect to derive from teaching. A 1981 survey of Ameri-

can public school teachers found that the three principal

reasons why individuals opt for teaching are their “desire

to work with young people” (expressed by 69.6% of sur-

vey respondents), their “interest in a subject-matter

field” (44.1%), and their belief in “the value or sig-

* AVERAGE STARTING SALARIES OF PUBLIC SCHOOL

TEACHERS COMPARED WITH SALARIES IN

PRIVATE INDUSTRY, 1975-76 TO 1981-82.

Position or subject field 1975-76 1978-79 1981-82

Minimum mean salary for

teachers witha

bachelor’s degree................... $ 8,768 $10,138 $12,769

College graduates with

a bachelor’s degree .

Engineering............:............ aod 13,236 17,172 22,368

ES Ee TE AEE HO Sate 11,712 13,992 16,980

Sales—marketing...................... 11,220 12,420 17,220

Business administration.......... 9,948 12,516 16,200

SERCO Si SY Bae 9,696 11,952 15,444

Ia Scidicekithtneshonsdoagchabste 11,640 15,036 19,536

Mathematics—statistics........... 11,004 13,872 18,600

Economics—finance............... - 10,404 12,408 16,884

Computer sciences..................... No Data 14,400 20,364

| | ee eee 10,956 13,560 20,028

Ibid. Over at least the last seven years (the period for which data

are readily available), starting salaries for teachers have not only

been lower, but have also increased at a lower rate than the start-

ing salaries for other professions. /bid.

9

nificance of education in society” (40.2%). In contrast,

the “financial rewards” of teaching were mentioned by

only 4.9% of those surveyed. National Education Asso-

ciation Research, Status of the American Public School

Teacher: 1980-81, at 71-73, 289-242 (1982). Accord,

Jantzen, Why College Students Choose to Teach, J. Tchr.

Educ., March-April 1981, at 47-48; Chapman & Hutche-

son, Attrition from Teaching Careers, 19 Am. Educ.

Res. J. 93 (1982) ; National Commission on Excellence in

Education, A Nation At Risk: The Imperative for Educa-

tion Reform 15 (April 1983) (recognizing “the dedica-

tion, against all odds, that keeps teachers serving in

schools and colleges, even as the rewards diminish’’).°

The facts of this case illustrate the point. In entering

into a two-year employment contract with the Board of

Education, respondent “left Joliet where he and his fam-

ily 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.” 706 F.2d at 1440 (emphasis added). Plainly,

respondent only accepted the job as athletic director and

head football coach in the Paris Union School District

because that job offered him some other, non-monetary

rewards in addition to its (lower) salary. Thus, respond-

ent’s contract with the Board of Education for two years

of employment gave him more than an assurance of

monetary compensation; it promised him the non-

monetary benefits of a job he wanted to perform over at

least the two-year contract period.

In entering into this contract, respondent thus expected

to receive a two-year opportunity to perform work that

he especially enjoyed doing—work that he was prepared

5 Chapman and Hutcheson compared the personal characteristics

of individuals who left the teaching profession with those who re-

mained in teaching. Based on that evaluation, Chapman and

Hutcheson concluded: “Criteria for success widely valued in other

fields, for example, salary and job autonomy, appear to have less

relevance for teachers.” 19 Am. Educ. Res. J. at 104.

10

to do at a salary lower than he was already receiving in

his prior job. But respondent had yet another expecta-

tion from that contract. Its two-year term gave respond-

ent an extended opportunity to prove his worth to the

Board of Education by “correct{ing] the deficiencies that

then existed in the Paris School District’s athletic pro-

gram,” App. 44, and in that manner to convince the Board

by successful performance that he was worthy of tenure.

“Had Vail been successful in rebuilding the school’s ath-

letic program, as no doubt all parties hopefully an-

ticipated, Vail would have benefited after two years from

statutory tenure,” 706 F.2d at 1438 (emphasis added).

It was thus a significant part of the bargain, from re-

spondent’s standpoint, that the Board assure him two

years’ employment. App. 44-45. By taking from re

spondent half the period that he had been promised, the

Board deprived him of one of the most valuable expecta-

tions that had induced him to enter into the contract—

an extended period to demonstrate his worthiness for

tenure.”

It would, of course, be possible for a State to create

a property interest that would take a disjunctive form.

For example, a Board of Education could offer a teacher

an option contract for his services, under which the Board

promises either to employ the teacher at an agreed-upon

* Dismissal of a public school teacher, such as respondent, during

the term of an employment contract adversely affects the teach-

er’s future employment prospects with other school districts as well.

Unlike an untenured teacher who is denied renewal at the end of a

contract term or an employee who is dismissed from a job that is

terminable at will—both of whom may be properly dismissed for

reasons wholly unrelated to their job performance—the arbitrary

dismissal of a teacher during his contract term automatically car-

ries an inference of “cause” for the teacher's dismissal. Thus, a

mid-contract dismissal necessarily impugns the teacher's “good

name, reputation, honor, [and] integrity” in the professional com-

munity, Wisconsin V. Constantineau, 400 U.S. 433, 437 (1971), and

can be expected to create substantial, practical difficulties in the

teacher's search for future employment.

11

salary or, if it chooses not to employ him, to pay him the

salary. But such a disjunctive entitlement is not the

norm, and it is not the property interest promised in

this case.” Respondent had a simple property interest in

continued employment, not a disjunctive claim of entitle-

ment to employment or salary.

Judge Posner’s notion that respondent’s property inter-

est is a “disjunctive right” thus is not an accurate depic-

tion of either party’s expectations when the contract here

was negotiated. Rather, his notion reduces to the premise

that as the State-prescribed remedies for breach of con-

tract are limited (and yield less for the teacher than the

Board’s promised compliance with the contract would

provide) the respondent’s property interest should be re-

defined as a matter of law to consist of no more than

what the State furnishes as a remedy for breach of the

contract. Thus restated, Judge Posner’s position is merely

a reincarnation of the thesis that “property” is defined

for Fourteenth Amendment due process purposes not by

the entitlement the State has provided but by the conse-

quences the State attaches to the deprivation of that en-

titlement—a thesis which a majority of this Court has

dispositively laid to rest. Logan v. Zimmerman Brush

Co., 455 U.S. 422, 481-482 (1982); Vitek v. Jones, 445

U.S. 480, 490-491 & n.6 (1980); Arnett v. Kennedy, 416

U.S. at 166-167 (Powell, J., concurring); id. at 185

(White, J., concurring in part and dissenting in part) ;

id. at 211 (Marshall, J., dissenting).

As the cited cases demonstrate, this Court has never

measured the property interests protected under the Due

Process Clause by the yardstick of remedies afforded un-

der State law. It has never treated property interests as

“disjunctive rights,” consisting of either the enjoyment

of the legitimate claim of entitlement or the remedy for

7 The clearest evidence that the contract here was not disjunctive

in this sense is that after firing respondent the Board refused to pay

his salary.

12

the entitlement’s deprivation that the State has elected

to provide. For example, in Logan v. Zimmerman Brush

Co., 455 U.S. 422 (1982), the plaintiff had been deprived

(through the negligence of a State official) of a fair em-

ployment cause of action under State law. The State fur-

nished a tort remedy for that negligence. Jd. at 435. But

the Logan Court held that the plaintiff had been deprived

of a property interest without due process. In reaching

that result, the Court defined the property interest as the

fair employment cause of action, id. at 428-432, not as

a “disjunctive right” to either the fair employment cause

of action or a tort remedy under State law for negligent

deprivation of that cause of action. The availability of

the tort remedy for monetary damages did not negate

the conclusion that the plaintiff had been deprived of his

property interest. See id. at 435-437. Similarly, in

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

(1978), the Court held that the plaintiffs had a property

interest in continued utility service, id. at 11-12, not a

disjunctive right either to that continued utility service

or to the State law remedies for its discontinuance (a

post-termination suit for damages or a_ post-payment

action for a refund). The availability of State-law

remedies for wrongful deprivation of utility service thus

did not mean that termination of the service was not a

deprivation of the plaintiff’s property interest. See id.

at 19-20. See also, eg., Fuentes v. Shevin, 407 U.S. 67,

80-82 (1972).

Judge Posner’s notion regarding the disjunctive nature

of property interests thus is at war with this Court’s

prior decisions defining the scope of Fourteenth Amend-

ment property interests. Indeed, that notion would ef-

fectively nullify the whole concept of procedural due

process for property interests, and reduce this aspect of

the Fourteenth Amendment to a redundancy. For wher-

ever the State provides a means for remedying the depri-

vation of property, that State means would become the

“disjunctive” definition of the property interest; and

13

wherever the State provides no means to enforce a “claim

of entitlement,” that claim would be merely hortatory and

not property within the meaning of the Fourteenth

Amendment. Bishop v. Wood, 426 U.S. 341, 347 (1976).

As we have shown, that incongruous result has been fore-

sworn by this Court.

II. THE DUE PROCESS CLAUSE REQUIRES THAT A

PUBLIC SCHOOL TEACHER BE AFFORDED NO-

TICE AND AN OPPORTUNITY TO BE HEARD

BEFORE THE TEACHER IS DEPRIVED OF HIS

PROPERTY INTEREST IN CONTINUED EMPLOY-

MENT.

In the present case, the Board of Education terminated

respondent’s employment after only one year of his two-

year contract. Prior to that termination, as the District

Court found, respondent “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 termina-

tion.” App. 45. Because the Board of Education pro-

vided respondent with no notice or hearing, this case does

not present the question of what precise procedures are

due a public school teacher before his property interest

in continued employment is terminated. Rather, this case

presents the simple question of whether any pre-termina-

tion process is due a public school teacher in these

circumstances.

The District Court and the Court of Appeals concluded,

in light of this Court’s decisions, that notice and some

opportunity to be heard are constitutionally required be

fore a public schoo] teacher who has a property interest

in continued employment is dismissed. Judge Posner,

however, as his third proposition, suggested that a post-

termination action for damages, by itself, provides the

full measure of procedural protection that the Due Proc-

ess Clause ought to require.

14

Again, this suggestion is founded on the incorrect

premise that respondent’s property interest may be

defined as no more than the salary to which he was en-

titled. See 706 F.2d at 1454. For only if respondent’s

interest in the Board’s performance of the contract were

limited to the receipt of the promised salary might an

action for lost salary provide a process commensurate

with the deprivation of property for which that process

is required. Once it is recognized that respondent’s prop-

erty interest includes the opportunity to perform the

job—a remedy not obtainable from the contract action—

it is apparent that that action, by itself, does not protect

the full measure of respondent’s property interest and

thus cannot constitute the full measure of the process

that is due.

All parties agree that a public school teacher, like re-

spondent, who is summarily terminated by a Board of

Education during the term of his employment contract

could file a State-law action for breach of contract. The

teacher would prevail in that action if he succeeded in

showing that there was not “good cause” for the Board

of Education’s termination of his contract. But in Illi-

nois, as in almost all jurisdictions, a public school teacher

who prevailed in a contract action would recover only his

lost salary; a court would not order specific performance

of the employment contract, nor even a monetary equiva-

lent (inadequate as that would be) for the less tangible

but important non-monetary interests that the teacher

would have lost by reason of the breach. Bessler v. Board

of Education, 69 Ill. 2d 191, 370 N.E. 2d 1050, 1053-

1054 (1977); School Directors v. Reddick, 77 Ill. 628

(1875); 5A A. Corbin on Contracts § 1204 (1964); Re-

statement (Second) on Contracts § 367 (1979).*

®In Illinois, as in most jurisdictions, a wrongfully discharged

teacher’s recovery is limited to the salary promised in the teacher's

contract. “The appropriate remedy for the wrongful discharge of a

15

As we have shown, a teacher’s interest in continued

employment under an employment contract is not limited

to an interest in the financial remuneration provided un-

der that contract. The non-monetary rewards of teach-

ing are not amenable to expression in dollars and cents,

and are not recoverable under Illinois law, but that does

not mean that their loss is any less real. As one Court of

Appeals stated in a case involving a teacher’s improper

dismissal :

When a person loses his job, it is at best disin-

genuous to say that money damages suffice to make

that person whole. The psychological benefits of

work are intangible, yet they are real and cannot be

ignored. [Allen v. Autauga County Board of Educa-

tion, 685 F.2d 1302, 1306 (CA11 1982) ].

Thus, “[s]eeking redress through a [contract action] .

will never make the [teacher] whole,” for the simple ree-

son that the contract action “does not provide for rein-

statement.” Logan v. Zimmerman Brush Co., 455 U.S.

at 436-437.

Only a process that affords the teacher an opportunity

to prevent the loss of the job can be commensurate with

nontenured teacher is an action for breach of contract. The measure

of damages is the salary provided in the contract reduced by such

sums as the wrongfully discharged teacher has earned or by reason-

able diligence could have earned in other employment subsequent to

the discharge.” Bessler v. Board of Educ., 370 N.E. 2d at 1053-1054

(citations omitted). See generally Annot., Elements and Measure of

Damages in Action by Schoolteacher for Wrongful Discharge, 22

A.L.R. 3d 1047 (1968 & Supp. 1982), and cases cited therein. That

courts do not award monetary damages for loss of the intangible

but real benefits that we have described in this brief is a reflection

of the general principle that damages will not be awarded in con-

tract actions for losses that cannot be measured with reasonable

certainty. Restatement (Second) of Contracts $352 (1979); see

also id. § 353 comment a, illustration 1; Miller v. Board of Educ., 98

Ill. App. 2d 305, 240 N.E. 2d 471, 475 (1968) (damages to teacher's

professional reputation not recoverable).

16

the interest that due process is supposed to protect.

Only through pre-termination notice and an opportunity

to be heard can a teacher learn the reasons why the

Board of Education is contemplating his discharge and

respond to those reasons at a time when the teacher,

who would otherwise be wrongfully discharged, might

avoid losing his job.'°

1° Even if (unlike here) post-termination process were available

that could lead to reinstatement, that process could net inake the

teacher entirely whole—non-monetary benefits would have been lost

in the interim»that could never be recovered. Absent State inter-

ests that would justify postponing process until after the depriva-

tion has been visited, due process requires that pre-deprivation

process be provided. Logan v. Zimmerman Brush Co., 455 U.S. at

436, and cases cited thereat. That notice and an opportunity to be

heard are required before the deprivation of a property interest in

continued employment, even where (unlike here) a post-deprivation

procedure is available which can place an individual back in the

position he initially held, is implicit in the Court’s prior decisions.

For example, in Arnett v. Kennedy, Justice Powell in his con-

curring opinion noted the extensive procedural protections that

federal employees were afforded before removal. The procedures

included “advance written notice of the reasons for {the} pro-

posed discharge,” “the right to respond to the charges both orally

and in writing,” and “an opportunity to appear personally before

the official having the authority to make or recommend the final

decision.” 416 U.S. at 170. Justice Powell concluded that these

procedures “comport{ed] with due process” as their use “mini-

mize[d] the risk of error in the initial removal decision.” Jd. at

170-171. See also id. at 195-196 (White, J., concurring in part and

dissenting in part).

Similarly, in Barry v. Barchi, 443 U.S. 55 (1979), the Court up-

held the sufficiency of the procedures afforded a horse trainer before

an interim suspension of his license, noting that well before his

suspension the trainer had been notified of the reason for his pro-

posed suspension and “was given more than one opportunity to

present his side of the story to the State's investigators.” /d. at

65. These pre-suspension procedures were thus sufficient to “satis-

factorily establish{| probable cause to believe that a horse ha/d/|

been drugged and that (the! trainer ha[d| been at least negligent

in connection with the drugging.” /d. at 64.

17

Pre-termination notice and an opportunity to be heard,

therefore, serve not only a useful but a necessary func-

tion here. Cf. Mathews v. Eldridge, 424 U.S. 319, 335

(1976). Such pre-termination process is required in a

case such as this to do more than “minimize the risk of

error in the initial removal decision,” Arnett v. Kennedy,

416 U.S. at 170 (Powell, J., concurring), or “establish

probable cause” for an interim suspension, Barry V.

Barchi, 443 U.S. 55, 64 (1979). Pre-termination notice

and an opportunity to be heard are required if there 1s

to be any process, at any time, which can prevent an

unfounded or arbitrary deprivation of a public school

teacher’s property interest in continued employment.

Certainly, if the only process available under state law

is, as here, “a lengthy . . . process which . . . will never

make the [discharged teacher] entirely whole,” Logan V.

Zimmerman Brush Co., 455 U.S. at 437, then the absence

of any pre-termination process denies the teacher “[a]

fundamental requirement of due process’—‘“the oppor-

tunity to be heard ... at a meaningful time and in

a meaningful manner” in an effort to avoid depriva-

tion of the opportunity to teach which was promised in

the teacher’s contract. Armstrong v. Manzo, 380 U.S.

545, 552 (1965).

The circumstances of this case therefore present no

occasion to make an exception to “the root requirement

that an individual] be given an opportunity for a hearing

before he is deprived of any significant property inter-

est.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971)

(emphasis in original; footnote omitted); accord, e.g.,

Memphis Light, Gas & Water Div. v. Craft, 486 U.S. at

19; Board of Regents v. Roth, 408 U.S. at 569-70 & n.7;

Bell v. Burson, 402 U.S. 535, 542 (1971); Coe v. Armour

Fertilizer Works, 237 U.S. 413, 423 (1915). The Dis-

trict Court and the Court of Appeals correctly decided

that, by its failure to give respondent any reason for his

dismissal or any opportunity to respond to the purported

18

reasons before his dismissal, the Board of Education de-

nied respondent due process of law."

CONCLUSION

The decision of the Court of Appeals should be

affirmed.

Respectfully submitted,

CHARLEs S. SIMS MICHAEL H. GOTTESMAN

AMERICAN CIVIL LIBERTIES ROBERT M. WEINBERG

UNION FOUNDATION PETER O. SHINEVAR

132 West 43rd Street BREDHOFF & KAISER

New York, NY 10036 1000 Connecticut Ave., N.W.

(212) 944-9800 Washington, D.C. 20036

(202) 833-9340

'! To be sure, even if respondent had been afforded pre-termination

process he might have failed to deflect the Board from its an-

ticipated breach of contract, and in that event respondent would

have been left with no more than his State-law breach of contract

action. But that the Board might have proceeded with its contem-

plated breach even after affording respondent an opportunity to be

heard does not mean either that the opportunity was meaningless

or that its absence comports with due process. Something—whether

or not amounting to “cause’’—prompted the Board to terminate re-

spondent’s employment. If apprised of what that “something” was,

respondent might have convinced the Board that it was factually

incorrect or an unwarranted basis for dismissal. For these very

reasons, due process is required even where the State retains ulti-

mate discretion to abrogate an individual's interest. Morrissey v.

Brewer, 408 U.S. 471, 483-484, 487-488 (1972).