on the property interest of a probationary public school teacher
in continued employment, this Court should abstain in the instant
It is well settled that the requirements for a sufficient
complaint under 42 U.S.C. § 1983 are that the defendant, while
acting under the color of state or local law subjected the
plaintiff to a deprivation of any rights, privileges, or
immunities secured by the constitution and the laws of the United
States. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961). The plaintiff based the instant civil rights action on
alleged denial of due process by the School Board.
The range of interests protected by procedural due process is
not infinite. The requirements for procedural due process apply
only to the deprivation of interests encompassed by the
Fourteenth Amendment's protection of liberty and property. When
protected interests are involved the right to a trial-type of
prior hearing is essential. See Board of Regents v. Roth,
408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bell v. Burson,
402 U.S. 535, 91 S.Ct. 1583, 29 L.Ed.2d 68 (1971); Boddie v.
Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
Liberty and property were never intended to be rigidly defined.
National Insurance Company v. Tide Water Company, 337 U.S. 582,
69 S.Ct. 1173, 93 L.Ed. 1556 (1949); M'Culloch v. State of
Maryland, 17 U.S. 316, 4 Wheat 316, 4 L.Ed. 579 (1819).
I. Interest in Liberty
In a free society the definition of liberty must be broad.
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed.
884 (1954). It is well settled that where a person's good name,
reputation, honor or integrity are at stake because of what the
government is doing to him, notice and an opportunity to be heard
are essential. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct.
507, 27 L.Ed.2d 515 (1971); Wieman v. Updegraff, 344 U.S. 183, 73
S.Ct. 215, 97 L.Ed. 216 (1952); Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817
(1951); United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90
L.Ed. 1252 (1946); Cafeteria Workers v. McElroy, 367 U.S. 886, 81
S.Ct. 1743, 6 L.Ed.2d 1230 (1961).
Thus, if a public school teacher was refused re-employment in
a manner reflecting on his good name, reputation, honor or
integrity, due process would require an opportunity for the
school teacher to clear his name. In the instant action the
reasons listed by the School Board for the plaintiff's dismissal
in no way suggest that he had been guilty of dishonesty or
immorality. The School Board, in refusing to re-hire the
plaintiff, did not make any charge against Max Miller that might
seriously damage his standing in the community. There was no
suggestion from the School Board's action that the plaintiff's
interest in his good name, honor or integrity was at stake. Since
there was no foreclosure of the plaintiff's range of future
employment opportunities by the School Board's action, due
process was not required.
It is the opinion of this Court that the School Board's action
did not violate due process in relation to the plaintiff's
interest in liberty. Board of Regents v. Roth, supra.*fn*
II. Property interest
Property interests protected by procedural due process extend
well beyond the interests in real estate, chattels or money.
Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d
418 (1971); Bell v. Burson, supra; Goldberg v. Kelly,
397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Courts have held that
tenured public school teachers have a property interest in
continued employment. Slochower v. Board of Education,
350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). Additionally, public
school teachers and school staff dismissed during the term of
their contract have a property interest in continued employment
that is safeguarded by due process. Wieman v. Updegraff, supra.
Recently, the Supreme Court has applied the due process
requirements to the property interests of a non-tenured teacher
who has a clearly implied promise of continued employment.
Connell v. Higginbotham, supra.
The instant action involves a question of whether an Illinois
probationary public school teacher employed on a year to year
contract without tenure or implied promise of continued
employment has a property interest in future employment with the
public school system protected by the Fourteenth Amendment. The
Supreme Court, in deciding a case based on a similar fact
situation, has stated that a non-tenured public school teacher's
property interests in continued employment depends upon whether
the school teacher has an identifiable property interest in
employment under the state law. Board of Regents v. Roth, supra.
Property interests are not created by the constitution. Rather,
they are defined by existing rules or understandings that stem
from an independent source such as state law.
The Illinois Code makes a substantial distinction between
tenured and untenured public school teachers. A probationary
teacher is employed on a year to year basis and his employment
may be terminated by notice of intent not to renew, given within
sixty days of the end of the term. This notice must be
accompanied by a written statement of reasons for nonrenewal. See
Chapter 122 § 24-11 of the Illinois Revised Statutes. The School
Board, in the instant action, met these requirements as they
applied to the plaintiff.
A tenured teacher, on the other hand, is on a contractual
continued service until age 65, and any action to discharge him
is subject to an elaborate dismissal procedure. Chapter 122 §
24-11 and 24-12, Illinois Revised Statutes. While Illinois law is
clear that a tenured teacher has a property interest in continued
employment, Illinois statutory and case law is unclear as to
whether a non-tenured probationary teacher has a property
interest in continued employment. The Illinois distinction
between tenured and non-tenured teachers indicates that only the
tenured public school teacher has a property interest in
continued employment. Yet the Illinois legislature has granted
probationary teachers a right to written reasons for nonrenewal
of their contract. This protection against arbitrary and
capricious dismissals might be interpreted by some as granting a
probationary teacher a property interest in continued employment.
Thus, Illinois law is unclear as to whether a probationary
teacher has a property interest sufficient to require a hearing
and the full procedural due process before re-employment for
another year can be declined.
Mr. Chief Justice Burger, in his concurring opinion in Roth,
Because the availability of the Fourteenth
Amendment right to a prior administrative hearing
turns in each case on the question of state law, the
issue of abstention will arise in future cases
contesting whether a particular teacher is entitled
to a hearing
prior to nonrenewal of his contract. If relevant
state contract law is unclear, the federal court
should in my view abstain from deciding whether he is
constitutionally entitled to a prior hearing, and the
teacher should be left to resort to the state courts
on the question arising under state law. Id. 408 U.S.
at 604, 92 S.Ct. at 2717.
It is the opinion of this Court that given the unclear status
of Illinois law, this Court should abstain from deciding the
instant civil rights action and the plaintiff should be left to
resort to state courts on the question arising under state law.
The management and control of public educational institutions is
a sensitive area in state-federal relations, and one in which the
federal courts have acknowledged the primacy of local authority.
Karr v. Schmidt, 401 U.S. 1201, 91 S.Ct. 592, 27 L.Ed.2d 797
(1971); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21
L.Ed.2d 228 (1968). In fact, Illinois courts have held that the
Illinois statute dealing with teacher tenure is significantly
different from the common law and must be strictly construed in
favor of the school boards. Lester v. Board of Education School
District Number 119, 87 Ill. App.2d 269, 230 N.E.2d 893 (1967).
The thrust of the instant action involves the interpretation of
a state statute rather than the federal constitution, a federal
statute or the general common law. Such cases as the instant
action are appropriate for abstention by federal counts. Lake
Carriers Association v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749,
32 L.Ed.2d 257 (1972); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct.
856, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90
S.Ct. 788, 25 L.Ed.2d 68 (1970). More specifically, abstention is
appropriate in the instant civil rights action since the question
of deprivation of the plaintiff's constitutional right is
dependent on a state court's determination of whether the
plaintiff, a probationary public school teacher, has a property
interest in his continued employment. See Hill v. City of El
Paso, Texas, 437 F.2d 352 (5th Cir. 1971); Alberda v. Noell,
322 F. Supp. 1379 (E.D.Mich. 1971).
Accordingly, it is hereby ordered that the defendants motion to
strike and dismiss the complaint is granted.