Eskel Norbeck v. Davenport Community School District

stigma which Roth held to be intolerable hearing.

without court is af- judgment of the district

firmed.4 NORBECK,

Eskel Appellant,

DAVENPORT COMMUNITY SCHOOL al.,

DISTRICT Appellees. et

No. 75-1613.

United States Court Appeals,

Eighth Circuit.

Submitted June

Decided Nov.

Rehearing Rehearing En Banc 28, 1976.

Denied Dec. requires require 4. The order of the district court hearing modified to before the admin- hearing judge before an body “administrative or oth- istrative board or which made the deci- impartial hearing er officer.” This should be employment. sion to terminate Churchwell’s Miller, E. Davenport, Iowa,

Charles for Waterman, appellees; Robert V. P. Lane & Waterman, Iowa, Davenport, on the brief. GIBSON, Judge, Before Chief and LAY BRIGHT, Judges. Circuit LAY, Judge. Circuit Davenport Board Directors of of the Community School District did not renew Norbeck, of principal contract Eskel the the for the 1972-73 High of Central School brought suit board members and school district claiming under U.S.C. § (1) illegally of his contract nonrenewal upon the of his exercise constitutional based right to act as chief for the Association, (2) Davenport Education procedural proc- a denial of due constituted over the claims ess. Jurisdiction federal asserted under U.S.C. §§ 1343(3) and 1343(4). Norbeck asserted also contract, claim breach and the failure to conform proce- with the board’s requirements of Iowa Code 279.13 dural § The district court dismissed all claims ex- the one cept brought under alleging § a violation of his association. the district court addition dismissed defendants, except the four board members who had voted not to renew his contract. 10-day jury trial After returned a verdict favor of the four board members. appeal challenges jury On and the district pre-trial instructions court’s He rulings. asserts district court instructing concerning erred his rights, the immunity First Amendment punitive damages. board members he that the claims district court In addition (1) not have dismissed: the school should I, party as Count since he had district 1331; jurisdiction under alleged § U.S.C. II); (Count breach of contract claim (2) his (3) upon procedur- denial his claim based Iowa, III); Hearn, Moines, process (Count (4) his claim John R. Des al due (1971) a violation of Iowa Code 279.13 appellant. defendants, West, named, not to H. Jack ed renew his contract: H. 1. Norbeck as individual Smit, Lafayette Twynner. nonre- Dale members at the time of Paustian seven board seven, had vot- four newal. Of these members The evening also asserts that dis- III). He (Count February after refusing negotiation him to session, to allow court erred trict board met in execu- charge of complaint to include a tive session consider amend whether to renew 1985 and U.S.C. Norbeck’s contract. At this ses- of the district the order sion the board We affirm members discussed 1986.2 evaluations,- to all dismissing complaint discipline teacher at court Central School, entry judgment High the of the skills, his defendants and administrative his tact, of the individu- poise in favor negotiator the verdict and and his role as a on members. for DEA. The board voted al board voted 6 to 1 Kaiser, to have Harold superintendent, Norbeck of inform their intention not to I renew his contract. principal by was hired as Eskel Norbeck being After informed of the board’s deci- Community District Davenport School requesting therefor, sion and reasons joined time he the local in 1968. At that beck received a letter 29,1972, dated March association, the Educa- Davenport teachers’ containing the four reasons for nonrenewal. (hereinafter DEA). tion Association given The reasons (1) were: unsatisfactory 1971 the DEA elected Norbeck serve as to performance; (2) poor judgment; (3) inabil- negotiator for the teachers in the chief ity to maintain discipline; (4) and inability district. negotiations their with the school parents to relate and follow through on During year school the DEA the 1971-72 problems. student governed by district were and the school 28, 1972, Norbeck, April On by letter to contract entitled “Professional Communica- board, requested public hearing, and a (PCA). recog- Agreement” tion PCA copy of written the specific examples of representative as the of all nized the DEA relating incidents to management his of the ex- of the school district certified 10, On May 1972, school. Kaiser responded cept superintendent and his executive request specific to Norbeck’s for the exam- other principals Thus school directors. reasons ples of for letter, nonrenewal. The in the supervisory personnel were included provided: part, bargaining provided The PCA also unit. provided You have heretofore been the board would not “discriminate” the four reasons why the School Board against any teacher his DEA member- considered your termination of contract. ship participation or DEA activities. The private At hearing with you held on PCA was ratified and the board 8,1972, April examples individual of mat- DEA, effective July became on relating your management ters of Cen- 30, and was to continue effect until June High tral School were discussed. These contract 1972. Norbeck’s 1971-72 include: period. was for the same time Your handling 1. of the 1971 Home- Negotiation over a new com- PCA was Queen coming Election. 17, January 1972, on menced and subse- Your 2. failure to make recommenda- negotiating quent sessions were held concerning tions the 1971 readmission of 7, January February 14. February High Central a former School student. The discussions centered on school Your proposal handling proposal board’s exclude supervisory personnel, including in school for keep seniors final principals, from evaluation represented unit DEA. close of the at the 1970 by the ment, stating allegation attempted 2. Before trial his that there was no to amend allege complaint 42 equal the defendants’ conduct denied Norbeck laws, protection U.S.C. 1985 and or that their four conduct members who voted contract. motivated racial or other class not to renew his based The district court amend- animus. refused to allow the physi- complaint in retaliation handling budget Your n proposals maintenance exercise of First Amendment plant and cal to serve as the chief Administration. DEA, his contract not renewed. em- to seek additional efforts 5. Your nonrenewal He asserts or termina ployment. public of a nontenured teacher’s tion resulting 6. Conflict predicated not be on the exer contract for the chief acting as your rights. of the teacher’s constitutional cise D.E.A. Sindermann, Perry See your of teachers under 7. Evaluation (1972); Pickering 33 L.Ed.2d 570 S.Ct. jurisdiction. Education, 391 U.S. v. Board concerning maintenance 8. Problems (1968); Keyishian L.Ed.2d S.Ct. discipline order of reasonable Regents, Board of 385 U.S. school. 675, 17 (1967); L.Ed.2d 629 Shelton v. Tuck added). (Emphasis 479, 247, 5 er, U.S. L.Ed.2d 15, May hearing was held on public A v. (1960); Woodbury and Scheelhaase Cen Paustian, president, the board Dale Dist., Comm. School tral F.2d in four reasons contained the summarized 29, He then of March letter Kaiser’s Assuming, arguendo, that Norbeck’s con- instances discuss numerous proceeded to not tract was renewed for reasons which of the ex- supporting these reasons. One his negotiator included role as chief the for judgment of cited Paustian amples poor DEA, we view question the fundamental as the negotiator Norbeck’s role for was a be whether school may board constitution- meeting, close of the At the DEA.3 consider, ally evaluating job in the perform- 4 to 3 not to renew Nor- members voted ance of a principal, school his participation ensuing the contract for bargaining in sessions with the school board as chief for a teachers’ associa- II tion. trial district court denied the de- At the verdict, Norbeck, for a and motion directed as principal

fendants’ of High Central School, jury the issue of whether was the chief submitted administrator for that Norbeck, acting as facility, responsible in chief and was physical its DEA, exercising structure, his constitutional- program, educational staff and we His right fulfilling of association. Since discretion in these ly protected students. subject di- policy court should have to the responsibilities the district find board, defendants, of of in favor the school as adminis- guidelines rected verdict alleged necessary superintendent not and his staff. it is discuss tered instructions, pro- or the of his errors The evidence demonstrated one responsibilities district was the supervision, of the dismissal of the school priety primary party of of as a defendant. evaluation coordination the work 3. Mr. Paustian stated: of Mr. Norbeck has teachers. thus placed himself in a direct conflict of interest extraordinary example Perhaps of the most properly represent situation. He cannot judgment Mr. failures in relates to management represent the same and at time position Davenport with the Education collectively bargaining teachers who are Association, principals, which includes su- opposition management. paid pervisors teachers. Mr. is Norbeck I not that this conflict of money year do believe sum of each a substantial merely manage High legal theoretical and has no situation Central School. He has practical consequences. duty allegiance Consider for exam- to the Board and moral temptations administration; fact, pressures ple or that must he is to the any Nevertheless, necessarily management. in his part he has inñuence administrator performance position negoti- job evaluating accept of teachers of chief seen fit to Davenport represents. he Associa- whom for the Education also ator tion, negotiations (Emphasis added). behalf in its

fi7 principal, As tional staff. Ass’n of Carriers, Letter 413 U.S. with the school district’s di- closely worked 93 S.Ct. 37 L.Ed.2d 796 hiring of teachers (1973). rector significant Even a interference High It was also his for Central School. with an individual’s freedom of association performance, teacher’s duty to evaluate a be sustained if there exists a suffi- findings superintend- report his ciently important interest, state and the ent, deficiency, proper that in case of a so employed means are narrowly drawn to action, solution, including disciplinary could unnecessary avoid abridgement of associa- Also, principal, found. Norbeck was be tional freedoms. Cousins v. Wigoda, 419 stage primary administrator at one for U.S. 95 S.Ct. 42 L.Ed.2d 595 any grievance. teacher (1975); Tucker, Shelton v. supra; Alabama, NAACP v. 460-61, asserting claim, his constitutional L.Ed.2d 1488 part provision relies in on the beck (the PCA) agreement 1971-72 master In an educational context the courts have DEA, provided which the board balanced a right teacher’s of association not would “discriminate” teachers against a state’s interest in the “orderly Assuming their DEA activities. system,” administration a school Whitsel had a contractual to become Dist., Local Southeast Sch. 484 F.2d DEA, a member of the and serve as its 1973), and the maintenance of negotiator, chief this alone does not create “properly moral and scholastic environ- right. a constitutional We must determine ment.” Sullivan Meade Indep. Sch. Dist. setting whether under the factual of the 101, 799, 530 F.2d (8th No. 1976). 804 Cir. case, enjoyed right constitutional Supreme Court, The in discussing a teach- as chief to act for the DEA. right er’s of free expression, has stated that a state has an promoting interest “in effi- Freedom of association is a “basic “ ciency public services” which includes ‘closely constitutional freedom” that is al of “discipline maintenance by immediate su- speech which, to freedom of and a right lied periors” and “harmony among coworkers” at the speech, like free lies foundation of a ” and preservation of those “relationships Valeo, society.’ Buckley v. 424 free U.S. . require] personal loyalty 612, 1, 637, [which (1976). 96 46 L.Ed.2d 659 S.Ct. and confidence . . . proper func- right encompasses of association pri [for] tioning.” Pickering Education, v. Board of public employees’ and vate union member supra 570, 391 at 568 and 88 S.Ct. at ship. Sindermann, Perry supra; See 347, Burns, Elrod v. 427 U.S. 96 Keyishian Regents, 1735. Cf. supra; Board 2673, Collins, 516, (1976) (plurality 49 L.Ed.2d 547 Thomas v. 323 U.S. 65 S.Ct. S.Ct. opinion) (nonpolicy making, (1945); 89 L.Ed. 430 nonconfidential American Fed. of State, government employee cannot be County Municipal Emp. discharged & v. Wood ward, (8th 1969); political because of associations). 406 F.2d 137 Cir. beliefs and Confed eration of v. Chicago, F.Supp. Police 382 conclude, existing We under the fac (N.D.Ill.1974); and 624 Teamsters Local 594 circumstances, tual that the interest assert Point, F.Supp. (D.Neb. v. West 338 927 by ed the school board in efficient school public Teachers and other school paramount is right administration to the employees pub are no different than other principal a school to collectively bargain for have employees, lic and a constitutional classroom teachers who he was hired to join McLaughlin v. Tilen right union. discipline supervise, and evaluate. A school dis, 1968); and Local properly board concerned over conflicts AFT No. F.Supp. v. School Dist. 314 relating to discipline the maintenance of (D.Col.1970). and co-worker harmony. important More

However, right associate, like ly, the board members were properly con speech, is not absolute. See with whether the working freedom cerned close rela among Civil Comm’n v. Na- tionship principal, superintendent United States Service any infringement board was threatened of a and school constitutional for the DEA. as chief role should not have been submitted to the possible as a basis recovery under supervisory The exclusion rights enjoyed collective from in the law employees is not new by other Ill labor, must have faith- “[mjanagement, like Beasley v. Fair of North Good agents.” . remaining contentions, ful As to the we hold Carolina, Inc., 416 U.S. that the district court properly dismissed This 40 L.Ed.2d 443 III, Counts II and and properly disallowed Taft-Hartley embodied in concept was Norbeck’s proposed alleging amendments National Labor Act, amended the which U.S.C. 1985 and §§ supervisors to exclude from Relations Act freeing employ- thus protections, the Act’s In Count II alleged that the discharge supervisors without violat- ers to defendant’s nonrenewal of his contract vio against discharges ing the Act’s restraints lated the anti-discrimination clause of the membership. of labor union on account See PCA, which incorporated 1971-72 654-55, 2023; supra at Beasley, reference into his contract for the 152(2), 152(11) 164(a). U.S.C. 1971-72 school Norbeck contends Firefighters In Elk Grove Local 2340 v. board, PCA, school under the had Willis, (N.D.Ill.1975), F.Supp. agreed to allow him membership partic aff’d, F.2d unpublished order 539 ipation in DEA during his contract 1976), the court held state’s true, however, term. This be this department an interest in efficient fire agreement prevent did not of fire prohibition to warrant sufficient making subjective evaluation Nor- captains lieutenants department from beck had judgment by exercised bad acting of rank joining a union which consisted as chief negotiator for the teachers. firefighters file who the officers were hired dismissing Count II the district court held supervise, discipline and evaluate. See the undisputed facts revealed a nonre Shelofsky v. Helsby, also 32 N.Y.2d 343 newal of ensuing his contract for the 774, appeal 295 N.E.2d dis N.Y.S.2d year and discharge during not a the con missed, U.S. 94 38 L.Ed.2d period. tract We agree. (1973). law, Under Iowa the terms of Norbeck’s these we Applying principles, conclude PCA, contract and the the board was under that district’s interest obligation no affirmative to renew Nor- of an efficient school adminis- maintenance contract. Norbeck’s beck’s contract as well justify sufficient tration was nonre- agreement subject as the master were The newal of Norbeck’s contract. evidence negotiation yearly basis. Norbeck’s actively partici- demonstrated Norbeck rights his existing under contract were not in collective with his em- pated, during terminated the term of the contract. an ployers, for association of teachers who For these reasons we sustain the dismiss- was evaluate supervise, he hired al of the under claims Count II and there- discipline. The majority of board con- do pass jurisdictional fore not on the ques- “poor of judg- sidered this conduct evidence tion raised. overly ment.” The nonrenewal was not broad, prohibit did not it The allega substance of Norbeck’s union, III, joining any particularly one of his in tion Count' asserting a denial of peers. lawfully procedural process Whether Norbeck was ex- requirements due ercising a constitutional ques- was a the Fourteenth Amendment and Iowa Code 279.13, jury. tion for court and not for the We was board was not an find, assuming impartial even the truth Norbeck’s tribunal. As a prerequisite to an contention, that the evidence failed to show process assertion of a due right, a nonten- quires the infringe- demonstrate an consideration of the teacher must ured individual’s in decision, interest upon “liberty” interest.4 as well as the ment interest in a particular state’s procedure for alleges a denial of such an making it. In Hortonville negotia- contract charge of a “conflict in the board’s tions between the school board and the this is and asserts that tanta interest” teachers’ association impasse. reached dishonesty, casting a to a claim of mount strike, teachers then went on which was Regents Board of v. stigma upon him. See illegal under Wisconsin law. The school Roth, 564, 574-75, board, after notice hearing, terminated determining In wheth L.Ed.2d striking teachers. The teachers charge of of interest is similar conflict er a complained board, because it had charge dishonesty, the courts must participated in the negotiations, was not examine the “characterizations of [Nor- sufficiently impartial to exercise discipline in behavior ... context.” beck’s] striking over the teachers. Under state law Walker, (7th v. 492 F.2d Adams school board was the only entity em- 1974); Turkey Jeffries v. Run Consoli Cir. to hire or fire the powered teachers. The Dist., (7th 492 F.2d 1 Cir. Sch. dated court held: case, context of this an examination In the showing A that the Board was “involved” charge board’s of “conflict of inter of the proceeding decision, in the events this in that, best, reveals at the statement est” light of the important interest leaving charge poor judgment to a amounts power given Board the by the dishonesty. charge not Thus basical legislature, state enough is not to over- equivalent alleging to a statement ly come the presumption of honesty and in- profes conduct failed to meet tegrity policymakers with decision sional standards. Such statement does making power. impinge upon liberty not interest. See Id. at 2316 added). (emphasis Taos, Abeyta F.2d 323 We find dispositive Hortonville 1974) (improper job performance); Blair v. constitutional and statutory issues before Regents, Board First, board, law, us.5 under Iowa 1974) (failure standards); to meet minimum only body empowered renew, or not Walker, supra (charges Adams of incom renew, teachers’ Second, contracts. neglect malfeasance). petence, allegation that one of the board Scheelhaase, supra at we stated that members tried to influence a member of the competencies of teachers are not mat community testify Black against him at dimensions, of constitutional but are ters public hearing states greater no “in- to state peculiarly appropriate and local volvement” than present in Horton- administration. conclude, We light ville. of the signifi- maintaining cant role in integrity and effi- However, assuming, arguendo, that ciency in given school administration deprived “liberty” of a inter Norbeck was legislature, the Iowa that the alle- est, we find that he was not denied due here gation is not of sufficient substance to In process. Hortonville Joint Dist. No. Sch. overcome the presumption honesty Ass’n, 426 Education 1 v. Hortonville integrity that clothes decision makers. 49 L.Ed.2d (1976), Supreme Court stated that a Lastly, we turn to Norbeck’s assertion of process of what conspiracy deny determination is due re- a equal protection him rules, specific regulations, 5. In the Iowa Code 279.13 does not confer tenure or absence of § expectation employ Supreme an of continued create or further definition the Iowa Directors, Court, interpreted ment. Brouillette v. Board of this court has 279.13 as a § 1975); (8th provide legislative Scheelhaase Cir. v. Wood F.2d basis nontenured teachers Dist., bury process. procedural Central Comm. Sch. F.2d due Brouillette v. Directors, (8th 1973). (8th Cir. Board of 519 F.2d 126 Cir. 1975). justified by 1985 and 1986. classification compel- state’s 42 U.S.C. law under attempt- ling maintaining Norbeck amendment close working his fourth I, allege and III to II relationships supervisory personnel. Counts with its to amend ed The Thus, 1985 and 1986. under §§ no invidious discrimination conspiracy exists.6 leave to amend Counts court denied that proper- we find Norbeck has not district Since to amend III, but allowed claim ly pled conspiracy II § then moved to The defendants I. he cannot maintain an action under Count I. Norbeck under Count the claim prevent conspiracy dismiss for failure actiona- and sixth amendments his fifth proffered ble under § conspiracy amplify his attempted to which Judgment in favor of each of the defend- denied Nor- court The district allegations. ants is affirmed. to amend and dis- application sixth allegation in Count I conspiracy missed BRIGHT, Judge Circuit (concurring): was no serious ground that there on denied that the defendants allegation majority’s I with the agree conclusion law, or that equal protection beck may, pain that a school district on of nonre- by racial or was motivated conduct their principal’s employment newal of the con- animus. other class based some tract, high principal forbid serving as chief for a labor or- 15(a) specifically pro Fed.R.Civ.P. representing the ganization interests of to amend “shall be permission vides principal whom the obligated teachers justice requires,” when so but freely given supervise on evaluate behalf of the by the court of standard of review without violating princi- school board the district court abused is whether appeals right. gives first amendment What pal’s Mining Co. v. Reserve discretion. See its appellant Norbeck, is that concern here 1975); Zatina v. me EPA, 514 F.2d 492 appears record, did not Lines, Inc., Greyhound objection of the school hear district’s previous court had The district grounds conflict of interest until the nonre- summary judgment for the de granted ly III, Count newal of Norbeck’s contract. I am not at on Count and dismissed fendants which that a upon a claim all certain school district ac- failure to state II for principal’s serving We find that in a as a union granted. quiesce could be relief court not abuse its discretion and then fail to renew his con- did district However, right to amend Counts it. denying plaintiff the tract because of Norbeck has allegation did III, precisely as the appeal not raised this issue on II II of Counts remedy the deficiencies reach it. not we do not and III. Accordingly, I concur the result. only remaining relates issue court’s dismissal of the district of Count I. Assum

conspiracy amendment discriminated the defendants

ing they because allowed class join the DEA and denied teachers

room (including principals)

supervisory find, previ the reasons right, we discussed, that this is a reasonable

ously addition, pleadings discuss the renewal of Norbeck’s contract. If review of the our allegations type allege allege, this were sufficient Norbeck has failed to shows every conspiracy, degree particularity, any overt act then state administrative some subject made the of a civil in furtherance of action could be the defendants committed whole, 1985(3). allega- rights conspiracy. action under See Powell v. Taken as a Board, Comp. (2d complaint little more than Workmen’s indicate tions meeting to consider and members

Case Details

Case Name: Eskel Norbeck v. Davenport Community School District

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 28, 1976

Citation: 545 F.2d 63

Docket Number: 75-1613

Court Abbreviation: 8th Cir.