Roy N. Stapp v. Avoyelles Parish School Board
545 F.2d 527
5th Cir.
1977
Check Treatment

*1 STAPP, Plaintiff-Appellant, Roy N. PARISH SCHOOL BOARD

AVOYELLES al., Defendants-Appellees.

et 75-1741.

No. Appeals, Court of

United States

Fifth Circuit.

Jan. *2 (Princi- N. Roy Stapp June

On Avoyelles pal) was informed the Parish Board) (School his Board that con- probationary, the non-tenured prin- as tract Avoyelles High of Bunkie School in cipal2 Jr., Orleans, Strickler, New George M. Parish, Louisiana would not be renewed for Katz, Monroe, Katz, J. La., Stephen &Kidd year, year. the 1974—75 academic a third plaintiff-appellant. La., for during year principal his second as Earlier Knoll, Atty., Asst. Dist. 12th T. High, Principal Jeannette received a letter of Bunkie Avoyelles,. Dist., of Marks- Parish Avoyelles Judicial the of intent from La., defendants-appellees. ville, (Superintendent). for let- Superintendent This part in

ter stated pleased your to advise that work as “I am I satisfactory and shall has been principal Avoyelles to the Parish recommend BROWN, Judge, Chief Before re-employed that be you Board GOLDBERG, Judges. Circuit JONES 1974-75 school session.” the BROWN, Judge: Chief R. JOHN the Also included in March letter specific indication that frequently anew presents case This intention to work for the demonstrated his employ- question probationary of a litigated System for the Avoyelles Parish School prior to process protection right to due ee’s term, the Parish would consider instance, the District dismissal. only him under contract and would release it had ruled that whether Court obligation “urgent him from his under the ordered was sufficient previously circumstances.” unforeseeable Due Process Clause of the requirements conveyed appropriately his intention to con- in Louisiana presented first should principal upcoming as school tinue We vacate and remand so System.1 year.3 may evaluate the District Court that proce- intent, under the process protections letter receipt After Thomas, Ferguson 5 struggle replacement announced dures over Bunkie (Coach) progeny. High F.2d and its School football coach reached regular permanent employ 1. See note infra. teacher in the parish city, school board of the or as (1963) sets forth the 17:442 man- L.S.A.-R.S. be, may successfully case he which has may a non-tenured teacher ner which year term; probationary served his three all permanent how one attains dismissed any parish city employ or teachers in or status. teacher tenured July school board as of 1946 who hold parish 442. Probation and tenure of or § proper who certificates and have served sat- city teachers school isfactorily parish city as teachers in that or probationary Each teacher shall serve years, for more than three consecutive are years to be reckoned from the term three regular declared to be teach- appointment parish in the or date of his first employ ers the school board of that serving proba- city the teacher is city. parish or probationary par- During term tion. be, board, may city as case or ish may school 3. The brief submitted counsel for School discharge any probationary or dismiss specifies School Board’s action as failure recommendation of the written teacher Superintend- to renew contract. schools, city parish superintendent ent’s letter of June recommends be, accompanied may valid as the case principal be relieved of his duties reasons therefor. employee dismissed as an of the school unsatisfactory Any found teacher case, system. we we Because remand this city parish case as the school note certain distinctions created the Louisi- be, probationary expiration the said at the regarding ability statute ana term, writing by the board notified in shall be Principal) (or to be and non-ten- both tenured dismissed; discharged or has been simultaneously. notification, proba- L.S.A.-R.S. 17—441 ured such of such the absence tionary automatically (1963) defines a teacher as become teacher shall position higher job untenured until a parish city “Any year probationary period similar three who a teacher’s certificate and holds clearly served. Section indicates that one legal employment requires such teach- whose position who had tenure in the lower does not er’s certificate”. tenure in lose that lower bracket because of a above, generally acquires in 2 As indicated promotion. year serving proba- status after a three tenured tionary Promotions; periods § (1963). *3 period. If a 17:442 L.S.A.-R.S. tenure permanent tenured achieves or status teacher acquired per- Whenever a teacher who has she the he or is then accorded § under status, as set in manent forth R.S. 17:442 and protections 17- L.S.A.-R.S. 17:443, city parish system in a or school is (Supp.1976). promoted by employing by the school board teachers; procedure; of 443. Removal § moving position such teacher from a of lower right appeal to salary higher salary, to one of such teacher permanent A teacher shall not re- be A. probationary period shall serve a of three except upon from written and moved office years higher position acquiring in the before charges neglect duty, signed wilful of or of therein, permanent status but shall retain the being incompetency dishonesty, or or of a permanent acquired posi- in status the lower contributing any group, of to member organization, or of promoted. from tion which he or she was corporation movement or During period probationary posi- the in the injunction prohibited by oper- law or from is ating promoted tion to which teacher a shall not be Louisiana, only of in the State and then disciplined, removed or demoted to the lower guilty hearing by a the after found position promoted from which he she or parish city, may of the or the case board be, as except compliance provisions in with the of may private public, be or expiration proba- 17:442. At the R.S. of the option of At at the the teacher. least fifteen tionary period higher position, in the a teach- hearing, days in of the of the advance date er, unless removed or demoted in accordance shall furnish the the school board teacher 17:442, automatically acquire R.S. shall with permanent copy charges. a the of written with higher position status the right appear the shall have to before teacher may disciplined, thereafter not be removed or with witnesses in his behalf and the board higher position except such demoted from compliance selection, counsel all of his of whom with provisions the with of R.S. by be the board at the said hear- shall heard 17:443. Nothing ing. impair contained shall herein appeal competent completed of of to a court not Where a teacher has period jurisdiction. probationary required for teachers as 17:442, permanent by particular guilty promotion- If a is or for B. teacher found R.S. herein, board, legal hearing position pro- by after due and established and is a school al as herein, higher position, provided charges or of ne- as glect wilful moted to a period, duty, incompetency, previous or dishon- as a or in or of either teacher position, esty, being promotional or of or a member of contribut- shall continue to run organization, ing any group, year probation- movement or at the of such three end by injunction ary corporation pro- period automatically law shall that is the teacher operating acquire permanent previously from in the State of Louisi- hibited status office, ana, position permanent removed and ordered from held until status board, may, disciplined by position acquired by compliance the teacher new year provisions than one the date not more from of this Section. finding, petition competent perspective statutory a court hearing said From the jurisdiction any full dispute for a to review the scheme and the absence of over status, Principal’s of the school action the court non-tenured no considera- jurisdiction given Principal may have to affirm or shall reverse to whether tion have job category of the school in the tenured action matter. had status a lower finding Avoyelles System purposes If of the school board is reversed the outright for any positions the court and the teacher is ordered rein- dismissal from and all duty, system. Also, and restored the teacher shall the school stated within the record pay any for loss of full time before this Court not sufficient to entitled make such may salary he or have rea- she sustained a determination. son the action of the said school board. As a result insufficient record tenured, may dispute any or she If a is not absence over whether under the Louisiana Teacher Tenure have had tenure in dismissed one teacher classifica- principal, Act written recommendation and no framework tion tenure as a dowe superintendent argument from the school board with consider School Board’s that Princi- provision pal valid However no failed to reasons. exhaust his state remedies under (1963). (Supp.1976) 17-442 is made. L.S.A.-R.S. L.S.A.-R.S. complication to the distinctions As a further teachers. Nor do we intimate predisposi- sections, required against ability these L.S.A.-R.S. 17:444 for or tion of such state promoted statutory (Supp.1976) appeal indicates that one ato created preclude routes to di- 503, 506, 507-14, 733, 21 89 S.Ct. L.Ed.2d Coach was fired phase. critical Principal’s Pickering Regents, recom- v. Board of without Board newspaper print- a local 88 S.Ct. L.Ed.2d 811.5 When 391 U.S. mendation. listing Principal as incorrectly an article ed Undeterred his March letter meeting who had attended of those intent, Superintendent prepared writ- Coach, Principal dismissal supported set- ten recommendation School Board having denied attend- paper, contacted Principal’s ting forth reasons requested a retrac- meeting, such ed not be renewed6 and for should tion. of the discharge an At System. regularly scheduled School Approximately one month later on 18, 1974, meeting Board June after 21,1974, Principal was called to School May by Superintendent assurance resign office and asked to President’s charges in his recommendation were or *4 Superintendent, Super of a presence substantiated, be the School Board could Instruction, a Curriculum and and of visor discharged adopted his recommendation and his Board member. Because re School Principal. important It is to note that al- newspaper from the local retraction quested though Principal present was at this meet- keep allegedly “. . . failure to was if, when, ing, he was never notified shut and mouth follow whatever di- his hearing on where his dismissal would Board School rection [the President] occur. choose”, contends that he was day Principal dis resign was later notified that On the same was and asked Board, he discharged. Consequently, charged by one of filed suit in School he was as the basis the United District Court for the given reasons States seeking de entails a fundamental Western District of Louisiana of his dismissal Amendment, injunctive claratory, “appropriate free and other by the First protected Board, alleged prove against equitable reason should relief” School each speech.4 If this dismissal, individually of Principal’s basis of member the school board private public capacities, of this case is clear. Such basic their and Su outcome rights pre- perintendent are not as a shed both official and individ Constitutional requisite capacities. to continuation of school related ual The District Court held an evidentiary Tinker Des Independent hearing preliminary career. v. Moines on the in District, 1968, Community junction 393 School U.S. relief issued an order and rul- excellent, concise, yet presentation For 5. of but school related out-of-class teacher activi- forum when cause of federal rect suit ties, Schauer, Books, see F. School Lesson Constitution, otherwise arises under action Plans, Constitution, and The 78 W.Va.L.Rev. laws, the United States. or treaties of 287, (1976). only emphasize Board that School We need subsequent complied with 17:442 and pursuant hearing by was to the 14, School Board copy A of of the June letter recom- protect property along Court to of the District order with mendation to School purview by Superin- of the Fourteenth within the letter was hand delivered interest cover Principal. require- process The letter to tendent Amendment’s general categories Board lists for of reasons for any hearing provi- required yet ments outside specific Principal’s with sixteen ex- dismissal Consequently, Louisiana statute. sions of the categories (1) amples. are The four lack of Princi- determination that District Court leadership, (2) administrative academic correct, Principal does not pal non-tenured organized supervi- lack classroom teacher procedures when state review to exhaust have program, the instructional sion as it relates to granted him L.S.A.-R.S. were none cooperate (3) with the central failure to office employee. (1963) as a 17:442 members, both, staff, school board speech argues alleges problems placement per- a free and the solution rights. sonnel, (4) cooperate good Amendment On failure to and foster his First violation community-school par- with certain argument or before this relations in his brief appeal no ents, potential leaders and officers service regarding business presented right. clubs. of association his freedom violation

531 4,1974, 408 ing August which concluded that U.S. 92 S.Ct. 33 L.Ed.2d Regents Roth, and Board of jurisdiction over subject matter it lacked 408 its members in their school board and 92 S.Ct. 33 L.Ed.2d 548. Determining under 28 U.S.C. capacity § official that the June 18 School Board meeting within the they “persons” are not failed to because meet the minimal due requirements, 1983.7 process U.S.C. It did find § ambit the District Court di- question pro- jurisdiction under the federal rected School Board within a reasonable of 28 vision U.S.C. time to hold such because of § under the stan- alleged Ferguson Thomas, violation Fourteenth dards enunciated in jurisdic- Amendment8 the necessary 430 F.2d 852 and its progeny tional amount. along reinstatement with pay principal back High Bunkie then The District Court concluded that as in the interim. probationary employee Principal normally process would not entitled to a full due mandate, In accordance with this hearing under L.S.A.-R.S. 17:442. Accord- again Board conducted a dis ing instance, to the District Court in this charged Principal. alleged pro Because of however, the March letter intent process cedural and due shortcomings, Prin expectation created more than a unilateral cipal requested the District Court to “ad re-employment. It created a journ” the hearing held School Board re-employment which entitled appoint special *5 a master to conduct a Principal hearing to a principles under the proper hearing. request This by was denied Sindermann, enunciated in Perry v. 1972, ruling 23, issued September on 1974.9 against 7. Because we vacate Avoyelles and remand this case to a school board such as Par grounds ish, jurisdiction the District Court on other discussed ques exists under the federal infra, pretermit in the text we provision, discussion analogous tion 28 § U.S.C. 1331. In presented cases, certain issues which were to this this Circuit has found sufficient basis for by supplemental argu- jurisdiction Court briefs and on oral exercise of our over school districts already 3, supra colleges ment. One indicated in note and state under 28 U.S.C. § Cir., 1975, whether school board College, remedies must be ex- Hander v. San Jacinto 5 522 204, 205; alleged in a hausted cause of on Callisburg Independent action based F.2d v. Roane speech press District, Cir., 1975, 633, 635, violations of freedom of or assert- 5 School 511 F.2d directly Consequently, ed under the Fourteenth principle Amendment. n.1. we find the unnecessary light holding applicable Others in Principal’s. of our in cases these dinger Al Cf. (1) 1, Howard, 1976, 427 this case are whether individual school v. U.S. 96 S.Ct. 276, 2413, 280, n.3; City board members be named as defendants 49 L.Ed.2d see also Bruno, 1973, 507, 514, 42 516, § U.S.C. 1983 a school board is not Kenosha v. 412 U.S. “person” section, (2) 2222, under that and whether 93 37 S.Ct. L.Ed.2d 109. jurisdiction federal and relief available un- ruling 4, August District Court’s 1974 Amendment, der the Fourteenth enforced clearly does not indicate whether the Court 1331, through 28 U.S.C. § co-extensive with ruling property right on based process due 1983, through that of 42 § U.S.C. enforced 28 independent basis of the First Amend- present § U.S.C. 1343. The status of this Cir- on ment claim or both. regarding problems cuit ing some these includ- September available remedies is ruling indicated en our 9. The 23 memorandum made opinion Muzquiz City following banc findings; v. of San Antonio Cir., al., 1976, et 5 528 F.2d 499. (1) process There is no basis in due for this jurisdictional purposes supervise It usurp hearing suffices for neces Court con- sary passing Avoyelles Board; before on the issues decided ducted opinion Principal alleged (2) Legislature, this that has That the Louisiana cause its wis- Constitution, arising laws, dom, hearing of action under the foresaw that a conducted Board), requi accusing body (the nonjudicial or treaties the United States and the controversy. Although might practice satisfy site amount not in the full ruling Muzquiz, supra, process requirements provided Court’s reinforced 341, of due . Wood, 1976, Bishop appeal v. 426 96 the State District at which S.Ct 684, 689, n.1, precludes hearing 48 L.Ed.2d use of or trial de novo would full be conduct- Rights jurisdiction requirements process Act Civil of 1871 and its all ed at which due counterpart, satisfied; al 28 § U.S.C. for a suit would 532 Cir., 1975, in- 511 permanent for a F.2d 637-39. On the

Principal then moved alleging declaratory relief that of the March 18 letter of intent which junction basis to free discharge violated specified Principal’s his. communica- that he was not afforded ade- speech willingness as princi- tion of continue on by the process protection quate due System would consider Prin- pal the School contract., hearing. examination of Without him cipal under would release held any record “urgent and unforeseeable circum- only for conducting without Board and stances”, we District agree Court’s motion, District Court denied Principal’s finding prop- had a definable motion with succinct con- Principal’s re-employment.11 The erty interest in his Motion for a fusing “Plaintiff’s employment in of continued the letter offer relief is injunction declaratory here- and for coupled with the admitted reliance reasons set forth in this by denied re- Board on affirmative August 12 ruling order of Court’s binding sponse expressed nature ruling ap- From this 1974.”10 acceptance falls into the class of such an peals. protected by property interests the due requirements.13 process procedural See of the consideration Prior 576-77, 2708-09, Roth, supra at at S.Ct. necessity sufficiency 560-61; at Perry, supra 33 L.Ed.2d at protections, must demon process at at Zim- S.Ct. L.Ed.2d “life, of an interest deprivation strate Cir., Spencer, 485 F.2d merer protections liberty, property” within the 177-78; Fox, 505 F.2d Sims prin Under the of the Due Process Clause. 857, 860-62. proba existing case for a ciples of the law employee with at most tionary, non-tenured case rec Equally important in this expectation continued em a unilateral except ognition principle of the in sin question remains about ployment, governmental agency may gular instances a in his or her any property interest lack of *6 discharge a not even non-tenured employment which shielded continued her First of or exercise of because requirements. process Bish due 597, supra at 92 rights. Perry, Amendment Wood, 1976, 341, 96 426 op v. U.S. S.Ct. 577; 2697, Roane, 33 L.Ed.2d at at S.Ct. 684; 2074, v. Sampson Murray, L.Ed.2d 48 640; Texas Woman’s supra Kaprelian v. at 1974, 61, 937, 94 39 415 U.S. S.Ct. L.Ed.2d 1975, Cir., 133, 509 F.2d 139. University, 5 166; 1972, Sindermann, Perry v. 408 U.S. Realizing any speech time freedom 570; 593, 2694, 33 92 L.Ed.2d Board of S.Ct. a significant as a basis of cause of Roth, 1972, 564, arises Regents 408 92 v. S.Ct. 548; proceed 2701, cautiously, a Court must we action Burnley Thompson, 33 L.Ed.2d v. 1233, 1240; past Cir., 1975, gently this issue because 524 F.2d tread 5 Roane v. Callisburg District, procedures Independent School 5 insufficient followed the Dis- (3) prepare The decision of the State District in order to Court letters intent student and assignment appealable Appeal; to ratios. the Louisiana Courts of teacher (4) law Plaintiff’s remedies under State have 12. indicate an These factors more than abstract not been exhausted. or desire existed. More than a need expectation unilateral fact, Although a District Court refers to was created. mutual its Au- 10. 4, produced by gust ruling, expectation was actions 1974 the context of initiated this case Superintendent. actually referring Sep- School Board it was indicates to its 23, ruling 1974 tember See order. note property upcom- then 13. This interest is for the supra. year, ing 1974—75. Whether school employment may Superintendent a have testified that School Board 11. existing capacity responses principals’ under the Louisi- in another teachers’ and relied on

533 be- Court and the state of record whether is entitled to recovery trict appeal.14 on us fore on Rather, a reinstatement contract claim. issue is whether had a non- recognize emphasis by the We dissent subjective expectancy of employ- continued pre-Roth and Sindermann Louisiana on the created, ment. Once this threshold is both through a teacher seeks cases15 which Roth Sindermann instruct that minimal be alleged suit on the direct process Principal. must be due afforded monetary reinstated either receive is the opin- This distinctive essence of our with opinion This does not deal award. Cir., statutory now Appeals ana framework is not before 200 So. 3, supra. Court. See note recognized Louisiana different issue discharged in the context of a or not arises probationary employee an rehired versus al- importance potential 14. additional Of validly leged never hired a school may prove First Amendment claim Kennington Also, at 516-17. indecisive board. Lanier be on remand once the District Court Brown, developed during along examines ing record the hear- Bankston and Richie may held Board. if rely rationale, This occur Lanier-Brown valid, non-discriminatory ground is shown to legislature imple- before the arose Louisiana discharge. Ferguson, have been the basis recognition via the Teachers’ Tenure mented 858-59; supra at see Robison Wichita Falls Act, 17:441, seq., LSA-R.S. et that because one Community Corporation, & North Texas Action may discharged given another con- Cir., 245, 255; 507 5 F.2d text see infra. synonymous having proc- is not tract Furthermore, Supreme we are mindful of the protections. interpreting In fact while Lou- ess Bishop, Court’s recent indication in Wood v. Act, Teachers’ Tenure isiana’s Louisiana supra at 48 L.Ed.2d at 96 S.Ct. at rejected Supreme Court the notion that the due 691, that protections probationary process accorded public absence claim that the [i]n require Act the existence of teachers employer motivated cur- desire to year. succeeding a contract See State penalize employ- tail or to exercise Board, 1941, v. Bienville Parish School 198 La. constitutionally protected rights, ee’s we Thus, 688, 4 So.2d 651. even in Louisiana presume regular must and, that official action was teachers, erroneous, can best corrected in Accord, ways. Megill existence of a contract with school board for other Re- Board of Florida, Cir., gents pre-requisite 5 State 541 future term is not a to the due protections process F.2d of the Teachers’ Tenure Winn, Richie, Bankston, Lanier, Although Act. Board, La.App., State v. Winn Parish School Brown be viable in the context Cir., 1942, 342; 2 9 So.2d Ritchie v. Ascension validly employed by they never Board, Cir., La.App., Parish School already employed Principal. not for one are 681; Tangipahoa So. Bankston v. Parish School Similarly, require Board, Roth Sindermann La.App., 177; 190 So. Lani- reasonable, non-subjective expectation of re- Board, er v. Catahoula La.App., Cir., 1934, capable employment an iron clad contract So. Brown v. St. Bernard —not *7 Board, Orleans, 1930, Supreme La.App. As the 14 of enforcement. Court stated 460, 131 So. ‘property’ Sindermann . . interests prefer process subject protection We to deal with to due these Louisiana cases on the substantive basis rigid, mentioned in the text. not limited a few technical forms. are Rather, However, other distinctions exist. range As men- ‘property’ denotes broad tioned, attempts all of these cases are to recov- by ‘existing that are secured rules interests ” monetary er a award or for un- reinstatement Sindermann, understandings.’ supra, 408 alleged viability der an contract. The limited at 92 S.Ct. at 2699. Such an these cases is revealed a factual dissimilari- contract, implied arise in form of a ty. exception Lanier, With the of Brown and contract, statute, However, or otherwise. we remaining the school involved in the Roth, proge- not read do Sindermann their could cases not have had tenure require ny to that interest created exclu- statutory status the Louisiana scheme. sively by contract or statute. This is the as- respect, rely In this these cases on that the idea sumption valid, of the dissent: enforce- the teacher had never been hired the school year contract able next school must contrast, Principal In princi- board. pal has been a exist before is entitled to Constitu- immediately preceding at for least the two process protections. We tional do not con- years. Additionally, Bankston, Richie, and Roth, Sindermann, strue later cases rely so on Kennington Winn the Lanier case. In narrowly. Board, La.App., v. Red River Parish School 2 Robison, County supra; tion. Madison has been non-subjective expectancy A ion. Education, supra; Ferguson, su- intimate nor consider Board do not We created.16 on any pra. to win Principal is entitled whether of intent from The letter claim. contract Because a First claim is in- Amendment Principal created more Superintendent volved, substantiality sup- of evidence It expectancy. definitive- subjective

than porting discharge Board’s should be Principal’s convey- ly indicated classified to determine whether further proper acceptance of a formal ance must decide the First District Court manner, Principal considered un- would be evidentiary Amendment claim and hold an obliga- from his released der hearing Principal’s on whether exercise of unforseeable cir- “urgent for tion rights significant basis for speech his cumstances.” discharge. reviewing School Board’s record, pos given the reasons dis- are certain. for factors Two right necessitating charge may prove clearly a hear to be insubstan- sessed sufficient, tial, Court ordered School substan- the District substantial ing and If hearing. such a but insufficient. the reasons are to afford tial sufficient, is the District this factor this Circuit’s substantial Coupled with preferred pro need not or receive evidence that a review consider determination hearings clearly such school board be on First Amendment claim.18 If cedure of insubstantial, the con- by the District Court. See Robi District Court must followed 254-56; son, supra Thompson at v. Madison and receive evidence on the First sider 1973, 476 Education, Cir., Likewise, County Board Amendment claim. the Court J., (Clark, concurring spe First F.2d must hear evidence Amend- cially); allegation Fluker Alabama State Board of insuffi- ment substantial but Education, Robison, 255; 441 F.2d 208 n. supra reasons.19 at cient 15; Ferguson, at supra 858-59; 857-59. Ferguson, supra Kaprelian, at see 139; County at Madison Board of supra Ordinarily is the District Court Education, supra 679-80. at expected hearing. to conduct de novo Rather, foregoing apparent it inquiry first is examine the From duty is exam- hearing to as District Court’s initial of a school board’s record hearing Board’s procedures record of School whether the followed vi ine the certain words, August ruling. pursuant to its rights. In other did held olated federal shows that the District Court for Princi The record Board conduct its last process September 1974 and adequate by procedural due issued pal injunction re- ruling denying Amend requirements the Fourteenth examining ever the record of so, quest without then the record should be ment? If For Principal. Board’s determine whether substantial viewed to reason, facts this record absent supports its ac- agency evidence before Megill allegation opinion unequal v. Board 18. This treat- most recent assumes 16. Our Florida, supra, Regents indicates of State and the reason or selective enforcement ment may acquire a reasonable untenured teacher justify the dismissal or sufficient alone employment. expectation of continued Robison, supra Madi- at cf. non-renewal. Education, supra County at 679- Board of son *8 view. At Two reinforce this added factors that Board contended Su- time has School authority acting perintendent was without not the District 19. This does necessitate representations Superintend- in the made make presented rehearing evidence at Court’s including binding nature of the ent’s letter — hearing on the First Amendment claim. Board’s Also, making Principal’s acceptance. after the may utilize such material District Court The appropriate acceptance to School formal during presented along evidence with other Board, representation Principal relied on this hearing. money payment as earnest and made a down Avoyelles purchase in the of a new home Parish. transpired during what regarding policy that rule or that secured his in interest hearing. ruling The District Court’s is va- re-employment.” and this case is remanded for recon- cated By decisions it apparent these is made light principles in of the dis- sideration peculiar the that whether par- facts of the opinion. in this cussed create implied ticular case an contract VACATED AND REMANDED. requires a Due which Process question is a its termination law. state JONES, dissenting: Judge, Circuit applicable The statute of pro- Louisiana holds, majority panel The of the I which, procedure vides for a as in the Roth opinion, read its that the letter of rightly case, acquisition the precludes property of a Superintendent from the of the intent employment interest until a contract has principal prop- Board to a created required by been made as the The statute. re-employment of which erty interest provides Louisiana statute that the Parish not be Due divested without a Process could Board: This, think, hearing. wrong. I is “shall determine the number of schools majority agrees with the district the opened, location of the school hous- conclusion that court’s the: es, the number of teachers to be em- of intent more than “letter created ployed, and select such teachers from expectation re-employment. unilateral made parish nominations superin- the created a property interest re-em- It tendent, provided that majority the which entitled to a ployment membership of the full elect hearing under principles enunciated without the teachers endorsement of Perry Sindermann, 408 U.S. superintendent.” LSA-R.S. 17:81. 92 S.Ct. 33 L.Ed.2d The Louisiana courts are not unfamiliar Roth, Regents requirement with the em- contracts of 548.” S.Ct. L.Ed.2d ployment of teachers cannot be made it Perry recognized In was Superintendent letter from the without despite the lack of or a may, tenure formal action of the school board. The Louisiana contract, property have a interest contin- Appeals Court of has said: employment. property This interest ued constituting “this letter falls far short of implied could take form of an contract contemplated such a contract as is under arising understandings from rules and place, In the first statute. employer or from the circumstances and Act, section School Board Perry, of the facts service. In such an charged with itself is selection implied re-employment contractual teachers, such selection to be made from created Sindermann’s reliance presented nominations it the Parish guidelines promulgated by the state univer- Superintendent. The Board itself has system sity provisions that were authority employ teachers either present faculty guide. in a The court held year the month and to fix their that, in the absence of a property such salaries. Under Section 49 of the Act it interest, subjective expectancy” “a mere person ap- that no provided shall be protected by procedural process. pointed to teach without a written con- Roth, the court determined that year tract for the scholastic which entitling to a Due taught, is to be Process must consist of more than a signed by Superintendent. to be It is expectation” re-employment, “unilateral that the plain- to be noted letter on which there legitimate must be a claim place is in the first purely tiff relies of entitlement to the interest. The court position possess plaintiff that the teacher offer of a is therein concluded did not legitimate claim to re-employment specifically-asked Superintendent because was no University there “state statute or know if accept to let him he will *9 processes, In teacher selection the actions of to him. the second position tendered absolutely nothing superintendent teaching in the in assigning is place there itself, to plaintiff’s petition positions prior to the actual execution nor letter board, Superintendent was au- with the and reliance contract school that the indicate superintendent’s Board to make the nominations the School thorized estop v. did not the school board from contained.” Blankston letters therein offer Board, denying employment La. the existence of an Parish School Tangipahoa 1939, 190 So. 177. contract. The court stated that the school App., Cir. 1st parish is board not bound acts v. Ascension Parish School In Richie In Brown it is said superintendent. that: 681, Board, it La.App., 1st Cir. 200 So. private corporation “a con- parish from the su- a letter held that was agent believe that duct leads to an teacher, requesting to perintendent authority estopped has is therefore work, could not be construed report for she deny authority, that rule but does the teacher and the between into contract apply public body to a not board the was it there no evidence that because board powers of duties and whose officers are by the board. authorized was by law. deal fixed Those who with such parish super- from the only Not is letter are bound to know the law with officers create property insufficient to intendent Cypress thereto. In v. reference State La employment, but the in continued Company, Lumber 144 La. 80 So. powerless is cre- parish superintendent estopped said: ‘The is not the court state ate, unilaterally, any right employment. the unauthorized acts of officers Board, Parish School La. In v. Winn State powers are defined and limited whose plaintiff 2d 9 So.2d App., Cir. law’ ”. employee became an that she maintained Employment through may not arise an superin- parish when the school board board, estoppel against the school but parish her to teach in a permitted tendent through the execution of contracts between determined that there school. The court the teacher and the board. State v. Winn prior to employment no contract Board, La.App., 2d Cir. between the teacher execution of a contract v. Richie Ascension School So.2d The said: the school board. court Board, supra. select, “Therefore, power since em- discharge privi- ploy employees appellant nothing is The had more than an peculiar lege power expectancy. This does create not n delegated, it may board and un- a contract. The consummate Louisiana follows that the questionably action of a has said: court superintendent selecting and, so far as binding employment “There is no on the able, employing a teacher without part the school board or the teacher knowledge board, or consent of the until written contract between them palpably so ultra vires as to create no parties executed both thereto. Pri- obligation against whatever as signing or or to the execution of the true, being certainly' by no contract, and this either the teacher or school imagination stretch of the could such any withdraw from former enjoy the status of agreement without reason and with- either, liability part the board.” out binding reason that there is interest, required by The agreement until written contract is case, supra, may through Perry not arise executed.” Lanier Catahoula Parish estoppel against the school board. Board, La.App., 2d Cir. case, supra, and Bankston Brown St. So. Board, La.App., Bernard Parish School Or- rejected might Enough leans the court has been So. More said. plaintiffs' principal contentions and held that had no tenure. He had said. *10 otherwise, right, contractual re-employment. protec- His claim to the must of the constitution be based tion created the Louisiana law. I can right. majority no such vacate and

see I would reverse and

remand. remand judgment enter

directions

board. SNEED, Plaintiff-Appellee,

Donald SHIPBUILDING, INC.,

SNEED’S

Defendant-Appellant.

No. 75-2319. Appeals,

United States Court

Fifth Circuit. 17, 1977.

Jan.

Jerry Smith, V. Pennington, John Cash Orange, Tex., defendant-appellant. Burmeister, Arthur, Tex., Jon B. Port plaintiff-appellee. COLEMAN,

Before CLARK and TJOF- LAT, Judges. Circuit TJOFLAT, Judge: Circuit brought Plaintiff-employee this action pursuant to the Labor Fair Standards Act compensation, of 19381 to recover overtime liquidated damages attorneys’ fees defendant-employer. from The case was stipulated court on submitted to the district facts, and judgment final entered for employee. appeal employer On ar- (1970 Supp. 1974). 1. 29 & IV §§ U.S.C.