*2 Gregory. liam Both letters dismissal Before RABINOWITZ, J.,C. and CON- cited 14.20.170(a) authorizing AS as NOR, BOOCHEVER, ERWIN and JJ. provides dismissal. This section that teach- only ers be dismissed for the follow- CONNOR, Justice. ing cause: This case concerns the dismissal of two “Incompetency, which is defined employ- non-tenured teachers from inability or the unintentional or inten- question ment. The whether they were tional perform failure to the teacher’s pro- rigid and inflexible related to the teaching in a satisfac- customary duties cedures cited above. tory manner.” presents veryA situation itself given for similar letters, dis- the reason In both the, again, enrolling regard late missal was: parents child child. The Pinette Board the School judgment “In the you uncooperative feel that have been your and the limitations extended illness *3 to helping in them and uncommunicative continuing medi- for imposed by the need by deficit caused this overcome the fail- constitutes treatment cation and/or child’s enrollment.” customary the teacher’s perform ure to appellants the Prior their dismissal satisfactory manner.” to duties in heard to be were accorded no following par- the the letter to Nichols In January before the school board. On for justification the given'as ticulars were in the 1971, appellants brought an action 14.20.170(a)(1): dismissal under AS damages superior seeking court to recover continu- apparently past and “(1) Your contracts, of their breach physiatric ing need medical and/or process clause of the due violation attention. [sic] amendment, proc- the the due fourteenth along difficulty getting in well (2) Your Constitution, and clause of the Alaska ess between conflicts with co-workers: Appellants Rights the Civil Act of 1871. yourself pre-school teacher over the injunction to sought an restrain also part of not be a should and should what discharge prior to a their case 1 curriculum. pre-school the and Grade the school board. by along difficulty getting in with (3) Your 24, 1971, superior the court April On be- parents of students: conflict remanding the to the entered an order case parents stu- yourself and the tween Borough for a Bay School Board Bristol exposed to First dents who have been the ac- determine the basis of to beginning prior to the materials Grade in against appellants the cusations made grade first instruction.” the child’s the letters November particulars letter to the the Johnston appellants be that court further ordered were listed as follows: hearing, of the that given adequate notice apparently past and continu- “(1) Your they to confront cross- be allowed psychiatric ing need for medical and/or represented witnesses, they examine attention. find- counsel, board make and that the of law or- of fact and conclusions ings to fact that (2) The failure disclose the order this a decision. Under der reach you complete were unable 1969-70 the mat- jurisdiction of the court retained year. school ter. flexibility (3) you display The lack of held before was When
accomodating to diverse needs of 26, 1971, appel- April on school board is specific example children. t]iis attempted call witnesses counsel lants’ your approach to the stu- exhibited clients, board the school testify but for his light this dent Scott Stewart. conclusion of At the request. refused the pupil’s in the subsequent performance reached a decision hearing, the board Program, Primary it Ungraded Naknek acts of dis- the earlier not, which affirmed apparent you is or would could 28, 1971,the Subsequently, July on missal. needs of this meet educational decision superior court affirmed your enrolling late student in class. Your of the tran- stated, review board and opposi- pupil “[a] evaluation direct Bay the Bristol script proceedings of tion to the his evaluations submitted findings and their Borough Board pfesent three teachers. Your reluctance findings are that their the court convinces your accept boy into class supported by appeal First, pro the record.” was tenured teacher. the statutory This superior permissive taken from the ruling. court’s vision in a form and allows suspension temporary during investiga appeal The teachers base their on three Second, tion. reference AS 14.20.180 major first, they contentions: were en- interpreted reasonably cannot to extend hearing prior titled to a to their dismissal hearing rights given to tenured teachers 14.20.170(b), the basis AS as well as under that section. The distinction the due clauses of the United States types treatment between the two of teach Constitution; Constitution and the Alaska quite express ers is clear fi'om the terms second, their dismissal was null and void AS 14.20.180.2 If illegal because of the manner in it hearing, right to it is not to be found third, accomplished; the decision that statute. supported by the school board was not evidence. A decision on whether the dismissal
procedure here followed was constitution ally permissible must be reached by evalu I ating the in light nature of the case of the appellants argue their The that process due clauses of the United States improper dismissal was under 14.20.- AS Constitution and the Alaska Constitution.3 170(b).1 express language of 14.- AS apply For that clause to there must clearly any indication that lacks 20.170(b) deprivation state action and the indi of an legislature provide the intended to a hear importance vidual interest of sufficient ing for a non prior dismissal cause of protection.4 warrant constitutional provides: 14.20.170(b) “(c) Upon receipt 1. AS of the notification suspended temporar- may hearing, employer “A teacher requesting a shall the ily regular compensation during immediately with a arrange hearing, for a and period investigation notify of to determine the or admin- shall tenure teacher writing, date, time, whether or not cause exists for the is- of the and istrator hearing. of a notification of dismissal ac- place suance A written tran- chapter.” cording script, tape, recording 180 of this § the or similar of proceedings kept. shall be Transcribed provides 2. copies : AS 14.20.180 to the tenure shall furnished “(a) employer upon request. An in a shall include teacher his cost notification of dismissal of a teacher who the final decision of the school board or acquired rights, majority appeal panel requires has not tenure or of non- a vote teacher, by membership. retention or dismissal of a tenure The vote shall be the complete a statement of cause a bill roll call. The final decision shall be writ- particulars. specific findings ten and contain of fact “ (b) may, The tenure teacher within 15 and conclusions of law. A written notifi- days immediately receipt following cation of the decision shall be furnished notify notification, employer days in writ- within 10 to the tenure teacher requests that he before the the date of the decision.” board, school employed by or if the tenure teacher Const, state, appeal I, provides an before 3. Alaska art. § 7 panel consisting part: person deprived of the director and two “No shall be life, liberty, property, members of the board. The tenure teach- or without due may require process er in the notification that of law.” (1) public provides XIV, be either or Amend. § U.S.Const. private, deprive part: . . . “No State shall (2) any person life, property, liberty, be under oath or af- firmation, process without due of law . . . .” (3) right he have the of cross-exam- ination, Comments, The Constitutional Minimum (4) by represented counsel, he be for the Termination of Welfare Benefits: (5) subpoena per- right Requirements he have the The Need of Prior allegations Hearing. son who has made are Mich.L.Rev. which as a used basis for the decision of employer. them, permanently charge which is on dismissal reemploy- their records and a hindrance clearly under color school board was event, any the dismissal of ment. past have in the Although courts state law. incompetency is a grounds employees have public frequently held that teacher is The accused discharge, serious matter. hearing on right to a no absolute impartial need fair desperately in privi employment is government because in which the issue be settled. re forum right,5 courts property lege and not to con more inclined cently become district are The interests school meth discharge and the sider the causes of First, is an inter- at least two-fold. there effected, it procedures ods and incompetent protecting est in students from rep discharge affects especially where teachers; second, in- is an economic there utation and assuring district terest that school thereafter.6 hire immediately can another teacher with- expense of incur added having out appellants are
Any
determination
one
paying
position.
two teachers for
dismissal is
entitled to
deciding
only preliminary to
the extent
ample
supporting the
There is
case law
protection they must be accorded.
en-
they were
appellants’ contention that
process pro-
of the due
precision
lack of
Kuehn v. School
titled
expressed
tection was
Mr.
443, 22
221 Minn.
N.W.2d
District No.
Justice
opinion
concurring
Frankfurter
in his
held
in the ab-
(1946),
the court
*5
Refugee Committee v.
Anti-Fascist
statutory
procedure
remov-
sence
Joint
624,
McGrath,
123, 163, 71 S.Ct.
341 U.S.
teacher,
may not
board
dis-
ing
a school
a
644,
(1951):
Slochower
scheme,
tory
but does not discuss the
U.S.
From the case law it is opinion er ques- of this does not reach the procedure likely most tion of whether the failure to have the stigma lead fair determination. The itself, hearing prior would, to dismissal incompe discharge which attaches to a required us to reverse. other sufficiently injurious to call for tence members the court do reach a determi- type safeguard.9 question, nation of this expressed Appellees argue that a is not nec- concurring opinion. essary teacher, relying for a non-tenured upon Whaley State, (Alaska P.2d 718 II Redman, 1968) and State v. P.2d 157 decision, We find rendered (Alaska however, 1971). Whaley, board school after the on re- provisional employee pleasure served at superior court, mand from the cannot be appointing agency. In the case at allowed to stand. bar, appellants only could dismissed for cause. dismissal for cause has an ad- principles When of due at tach, verse effect on because it harms there is a certain procedural level of *6 professional reputations. their Redman that must be fairness accorded to an affect for the proposition stands tenured party. that and ed This level of fairness cannot be non-tenured teachers be accorded dif- found in the instant case. See, g., Updegraff, 8. e. prove Wieman 344 v. the Court held that a teacher must 183, 215, deprived 73 L.Ed. U.S. 97 216 that has been S.Ct. he of an interest (1952); “liberty” “property” United Pub. of Workers America or before that Mitchell, 75, 556, protected by v. 330 S.Ct. U.S. 67 interest is the Fourteenth (1947). Roth, 91 L.Ed. year 754 Mc Greene v. Amendment. In after of one Cf. Elroy, 474, 1400, teaching one-year contract, 360 U.S. 3 79 S.Ct. under a the (1959); acquire rights L.Ed.2d v. Bd. 1377 Schware teacher did not tenure to Examiners, 232, Bar employment; therefore, of 353 U.S. 77 S.Ct. continued he did 752, (1957). “property” 1 L.Ed.2d The con not 796 an interest and hearing tractual terms of must be before the Board on to failure unnecessary. Perry, considered in each are instance. AVe rehire was In the questions not confronted in this case with that Court held where a em- is provisional temporary ployed years, about em for a number of he should ployees. to allowed show that a de facto tenure system situation, exists: such Developments Freedom,
9. 81 —Academic hearing necessary. is 10-45, (1970). Harv.L.Kev. Bd. 1083 See bar, mid-year In the case at dismissal Regents Roth, Colleges of State v. Clearly is at issue. the teachers have 564, 2701, 408 U.S. 92 33 L.Ed.2d S.Ct. deprived property, been namely, of an interest (1972); Sindermann, Perry 548 v. 408 present teaching posts. 593, 2694, 92 L.Ed.2d U.S. S.Ct. 33 570 protected by This interest is an the Four- Amendment to the teenth U. S. Constitu- Although distinguish- both cases deal with tion the first Alaska article the situations, namely fact failure to able Constitution, they and thus are entitled dismissal, here, rehire and not a reasoning the as hearing. appropriate. cases, is In both
1365 . . . required. were is appellants [The significantly, Most op- the given should also to testi right call witnesses to denied the student] Board, at present to to the portunity nature and the behalf. Where fy on their serious, official the least to an administrative charge are consequences o>fthe here, against college, his defense own incompetency charge Alabama . ..” Dixon v. charges . witnesses one’s behalf is right present to 150, Education, F.2d only one side State Board hearing which manifest: a 158, (5th 1961). inherently Cir. unfair. presents evidence is In us that the case before we conclude Supreme Court A recent United States appellants opportunity to given must be 254, case, Goldberg Kelly, 397 U.S. by testimony and present their own defense (1970), concern- L.Ed.2d 287 S.Ct. other evidence. benefits, up- has of welfare ing termination hearing necessary, judicial not full present parties to of affected right held the administra- hearing but a that allows the during arguments in their defense their own authority examine both sides tive hearing. questioning an administrative controversy protect the interests will procedures terminating welfare - all rights are involved. We who mini- benefits, the Court there established judicial hearing alize a full could be that hearing. procedural safeguards for a mal and, therefore, possibly consuming time require not a full the Court did Although of the school detrimental the interests trial, the welfare judicial it held that where district, delay might required recipient present not evi- permitted was in- perhaps unsuitable or dismissal and cross-examine dence and to confront competent But the teacher. rudiments witnesses, was inade- hearing adverse adversary hearing preserved an can be quate. to the omissions were “fatal Such casting without an undue burden on the adequacy procedures.” constitutional school district. at at 397 U.S. S.Ct. Considering the nature of the also stand- Fifth Circuit has clarified case, why we can ascertain no reason ards a fair administrative denied should have been ruling adequacy of a on the student’s hear- right to call witnesses on their behalf. ing prior expulsion college, from state refused the says school board that it the court stated that appellants’ request call be- witnesses vary superior granting nature should cause the court order “[t]he depending upon not specifically the circumstances did mention particular necessary it right. case. The before us re- But case *7 quires something every more than order specify an informal essential constitutional guarantee interview with an administrative author- constitu- order to make such ity college. nature, By charge procedures its a tional effective. misconduct, opposed of failure
meet the scholastic standards of col- Ill lege, depends upon a of collection appellants’ not conten- We do reach third concerning misconduct, facts charged error, tion of that the conclusion of the easily point colored of view the supported board not the evidence. circumstances, witnesses. such a improperly were Because hearing gives which the Board or the ad- discharged, we must reverse the decision college ministrative authorities of the superior This court. case remand- an opportunity to hear both in con- sides superior pro- ed to the further court for protect siderable detail best suited to opinion. ceedings consistent with this rights of all involved. This is not to and imply a remanded. judicial hearing full-dress Reversed 1366
ERWIN, Justice, with whom RABINO-
serious
may
matter and
cause substantial
WITZ,
BOOCHEVER,
injury.
Chief
and
Specifically,
suspension
such
or
Justice
Justice, join, concurring.
discharge may cause
hardship,
economic
stigma
create a
incompetence
and blem-
generally agree with
While we
ish
professional
the teacher’s
reputation,
holding
opin
reached
Connor’s
Justice
possibility
decrease the
of other education-
court,
go further and
ion for the
we would
al
opportunities, deny the
extraordinary
require
except
in certain
teacher the
pursue
a chosen
situations,
satisfy
necessary
professional activity, and disrupt an exist-
process
of the due
clause
requirements
relationship
educational
between teach-
held
of the Alaska Constitution1 must be
er and
Eighth
students. As the
Circuit
prior
suspension or dis
to the mid-term
cently
Cooley
observed in
v. Board of Edu-
teacher.2
charge of a non-tenured
District,3
cation of
City
Forest
may
exceptional in-
There
be certain
Given the ensuing
hardship
economic
stances which the conduct of
summary deprivation
of the source of
and
present
would
a serious
imminent
livelihood,
one’s
and in view of the awe-
physical
psychological
threat to the
or
well-
some
potentially
stigmatizing effect
cases,
being of the students.
In such
mid-year termination,
such a case as
removal
the teacher from the
immediate
assuredly
presents one of the clearest
require-
justified.
classroom would be
The
instances where
procedural
the rule of
process
ments of due
be met
would
Process,
Due
properly applied,
op-
must
procedure
provided
suspen-
for the
erate to
injurious
interdict
and reckless
pay pending
sion of the teacher with
governmental treatment.4
prompt convening
of a full
Ab-
circumstances,
extraordinary
sent
such
potentially
view the
injury
serious
however, hearing
must be afforded a non- which would
unjustifiable,
result from an
suspension
teacher before
tenured
or dis-
arbitrary discharge
suspension
or
of a non-
charge.
teacher,
employ
tenured
higher
we would
suspension
procedural
discharge
process
or
of a non-
standards
prior
expiration
require
tenured teacher
to the
would
holding
of a
very
prior
any
suspension
term his or her contract is
discharge.
or
Hearing
Const.,
I,
7;
1. Alaska
Art.
see also K
Before a
§
School Board on Non-
Murkowski,
Contract,
renewal
& L
v.
Distributors
486 P.2d
Teacher’s
(Alaska 1971).
(1971) ; Article,
Wisc.L.Rev.
356-358
Amendment,
Fourteenth
Fundamental
Lafferty
Carter,
F.Supp.
Cf.
Fairness,
Probationary
Instructor,
(W.D.Wis.1970)
;
discussions
University
and the
of California —An In
requires
whether due
compatible Foursome?, 5 UCD L.Rev. 608
before a teacher
be terminated
(1972-73) ; Note, Probationary
Public
generally
his contract
see
renewed
School Teachers
and Procedural Due
Alatyne,
Eights
W. A.
The Constitutional
Hearing
Is
Process:
Useful —Drown v.
Professors,
of Teachers and
L.
1970 Duke
District,
Portsmouth School
1971 Utah L.
(1970) ; Comment,
J. 841
Due Process
(1971) ; Note,
Rev. 573
Constitutional
Employment
Restrictions
on the
Power
Process-Arbitrary
Capri
Law-Due
Teaching Profession,
and the
Neb.L.
cious Abuse of Discretion in Non-Renewal
(1970-71)
; Comment,
Rev. 655
Consti
*8
Contract,
of Teacher’s
8 Wake Forest L.
tutional Problems in the Nonretention
(1971) ; Comment,
Rev. 131
Non-Tenure
Probationary Teachers, 1971 U.Ill.L.For.
Upon
Rights
Teachers:
missal,
Procedural
Dis
(1972) ; Note,
Non-Tenured Teachers
Loy.U.L.J.
Right
and Due Process: The
to a Hear
Reasons,
and Statement of
29 Wash.
(8th
1972).
3.