United States District Court, Southern District of Illinois, N.D
July 28, 1970
RUTH SHIRCK, PLAINTIFF
ROBERT S. THOMAS, JAMES L. WALLINGER, RONALD KEYSER, EDWARD W. OBERLE, LLOYD E. PEAKE, JR., DONALD RAMEY, GEORGE STOLLEY, INDIVIDUALLY AND AS THEY ARE MEMBERS OF THE SCHOOL BOARD OF DISTRICT NO. 303, COUNTY OF TAZEWELL, STATE OF ILLINOIS; WILLIAM HOLMAN, INDIVIDUALLY AND AS HE IS SUPERINTENDENT OF SCHOOLS OF THE PEKIN COMMUNITY HIGH SCHOOL, AND RAY L. MORELLI, INDIVIDUALLY AND AS HE IS ASSISTANT SUPERINTENDENT OF SCHOOLS OF THE PEKIN COMMUNITY HIGH SCHOOL, DEFENDANTS.
The opinion of the court was delivered by: Robert D. Morgan, District Judge.
DECISION AND ORDER
This is an action brought pursuant to the Civil Rights Act of
1871, Title 42, United States Code, Section 1983, alleging the
violation of rights under the Constitution and the laws of the
United States. Relief is also sought pursuant to the Federal
Declaratory Judgment Act, Title 28, United States Code, Sections
2201 and 2202. Jurisdiction is founded under 28 U.S.C. § 1331
and 1343(3) & (4). The case is presently before the court on
defendants' motion, under Rule 12(b)(6), Federal Rules of Civil
Procedure, to dismiss the complaint because of plaintiff's
"failure * * * to state a claim upon which relief can be
granted." Since affidavits on both sides establish the material
facts, the motion is treated as one for summary judgment as
required by that rule. All parties have been given reasonable
opportunity to present material
made pertinent to such a motion by Rule 56, Federal Rules of
The material facts are not in dispute. Plaintiff was employed
as a public school teacher at the Pekin Community High School in
Pekin, Illinois, on a full-time basis during the academic years
of 1967-1968 and 1968-1969, and the defendants, in their public
capacities, operate that school.
Under Section 24-11 of Chapter 122, Illinois Revised Statutes,
plaintiff's status until the end of the 1968-1969 school year was
probationary. That statute provides in pertinent part that:
"Any teacher who has been employed in any district
as a full-time teacher for a probationary period of 2
consecutive school terms shall enter upon contractual
continued service unless given written notice of
dismissal stating the specific reason therefor, by
registered mail by the employing board at least 60
days before the end of such period."
By letter dated April 1, 1969, proper and timely notice under
that statute was given the plaintiff that the School Board had
voted unanimously not to offer her a teaching contract for the
school year 1969-1970 because of failure to coordinate her
teaching with other teachers to the detriment of students.
Whether the plaintiff was advised of the School Board's meeting
and that she could be present and explain her position, disputed
here by conflicting affidavits, is considered immaterial to the
issue here presented.
In order to recover under 42 U.S.C. § 1983, the plaintiff must
prove that the defendants have deprived her of a constitutional
right "under color of law." Adickes v. Kress & Co., 398 U.S. 144,
90 S.Ct. 1598, 26 L.Ed.2d 142 (June 1, 1970). Teachers are not
relegated to a "watered-down version of constitutional rights."
Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17
L. Ed.2d 562 (1967); Muller v. Conlisk, ___ F.2d ___ (7th Cir.
June 29, 1970); but a teacher must show that the defendants
abridged some right, privilege or immunity within the scope of
the Constitution of the United States and the Civil Rights
statute on which she relies. Haines v. Kerner, 427 F.2d 71 (7th
Cir. May 25, 1970). This court is fully satisfied that the
plaintiff has failed to meet this initial burden and that the
complaint must be dismissed with prejudice.
The plaintiff alleges no state statutory violations and it
appears manifest that Ch. 122, Ill.Rev.Stat. § 24-11 was fully
complied with. The gravamen of the complaint, therefore, must be
that defendants' full compliance with this statute violated
plaintiff's constitutional rights. This court does not agree.
There is no constitutional right to initial public employment
or to permanent employment while the employment is probationary.
The "tenure" laws provide additional protection for teachers
after successful completion of probation. Under the
circumstance here, the alleged violations of the First and
Fourteenth Amendments asserted by the plaintiff are entirely
specious. This court holds that a complaint by a former
probationary school teacher, stating only that she was dismissed
upon proper notice and in conformity with state law, fails to
state a cause of action for which relief may be granted. Parker
v. Board of Education, 237 F. Supp. 222 (D.Md. 1965), aff'd
348 F.2d 464 (4th Cir. 1965), cert. denied, 382 U.S. 1030, 86 S. Ct.
653, 15 L.Ed.2d 543 (1966), rehearing denied, 383 U.S. 939, 86
S.Ct. 1071, 15 L.Ed.2d 857 (1966). Cases cited by plaintiff are
inapposite in that they all involve persons on academic tenure.
E.g., Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969). See also
Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. 1969).
Probationary employment is specifically provided for a qualifying
trial period in which preliminary scrutiny must be allowed to
determine the person's fitness for permanent appointment. Elder
v. Board of Education, 60 Ill. App.2d 56, 208 N.E.2d 423 (1st
Dist. 1965). The efficacy of a probationary period of employment
with provision for summary dismissal within that period has been
fully recognized in other governmental occupations. Jaeger v.
Freeman, 410 F.2d 528 (5th Cir. 1969); Medoff v. Freeman,
362 F.2d 472 (1st Cir. 1966). The same considerations are clearly
applicable to probationary teachers and the determinations rest
with the duly constituted public school authorities.
It is clear that the courts should not and must not intervene
in the resolution of conflicts which arise in the daily operation
of school systems which do not directly and sharply implicate
basic constitutional rights, Epperson v. Arkansas, 393 U.S. 97,
104, 89 S.Ct. 266, 21 L.Ed. 2d 228 (1968).
Accordingly, the defendants' motion to dismiss the complaint is
granted and the complaint is dismissed with prejudice.
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