UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: February 5, 1974.
DOROTHY JEFFRIES, PLAINTIFF-APPELLANT,
TURKEY RUN CONSOLIDATED SCHOOL DISTRICT, ET AL., DEFENDANTS-APPELLEES
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. S. Hugh Dillin, Judge.
Cummings, Pell and Stevens, Circuit Judges.
STEVENS, Circuit Judge.
Fairly analyzed, the question presented by this appeal is whether a public employee, who has no right to any procedural safeguards in connection with the termination of her employment, and who does not claim that she was terminated for a constitutionally impermissible reason, nevertheless is protected against "arbitrary and capricious" discharge by the concept of "substantive due process."
For three years plaintiff taught music and mathematics in an elementary school operated by defendants. In April, 1972, defendants notified her that her contract would not be renewed for the next succeeding year. She requested, and was given, a hearing before the School Board at which she was represented by counsel, and a written statement of reasons for the nonrenewal decision.*fn1 Having failed to persuade the defendants that her employment should be renewed, she brought this action pursuant to 42 U.S.C. § 1983. She makes no claim to tenure as a matter of state law, but does allege a violation of her constitutional rights because the defendants' decision was made "for reasons which are arbitrary and capricious, being wholly without basis in fact or in logic."*fn2 She prays for injunctive relief and damages of $25,000. In our opinion, Judge Dillin properly dismissed her complaint.
There are two aspects to plaintiff's attack on the Board action as "arbitrary and capricious." In part, she is attacking the written statement of reasons as either illogical or untrue; more fundamentally, she is attacking the actual decision of the Board as illogical and lacking in reason. We consider the two aspects of her claim separately.
The Supreme Court's reversal of this court's decision in Board of Regents v. Roth,*fn3 makes it perfectly clear that plaintiff did not have a constitutional right to a hearing before the School Board in connection with its decision to terminate her employment. She had no tenure or other claim of entitlement to the position which would qualify as a property interest under the Court's reasoning in Roth and in Perry v. Sindermann.*fn4 Nor has she alleged an impairment of her "liberty" either by alleging sufficient facts to indicate that she was accused of dishonesty or immorality, or otherwise stigmatized, or by claiming that the termination of her employment was motivated by her exercise of rights protected by the Constitution or by a discriminatory purpose. Since she was not deprived of either "liberty" or "property," as those terms are used in the Fourteenth Amendment, she had no constitutional right to have the Board accord her procedural due process when it decided not to renew her contract. She had no constitutional right to a hearing and, as we understand Roth, no constitutional right to a written statement of the reasons for her discharge.
In our opinion, the questions whether a nontenured teacher, whose contract is not renewed, has any right to a statement of reasons or to judicial review of the adequacy or accuracy of such a statement are matters of state law, not federal constitutional law. There are sound policy reasons to support either a statutory requirement, or an administrative practice, that a complete and accurate written statement of the reasons for such an important decision be promptly delivered to the teacher. But since, by hypothesis, no constitutionally protected property or liberty interest of the teacher is impaired by the Board's action, she has no federally protected right to a fair hearing or to a fair statement of reasons. The fact that a state, or a School Board, may voluntarily communicate more information to her, or receive more information from her, than the Constitution requires, is not in itself sufficient to create a federal right that does not otherwise exist.
A written statement of reasons may have great significance as evidence, for example, that a particular Board decision was motivated by a constitutionally impermissible reason. And, of course, an adequate statement by the defendants would not foreclose a claim that the Board was, in fact, motivated by a forbidden purpose. But the statement itself is just evidence, not an aspect of the state's legal process that is subject to federal supervision and control mandated by the United States Constitution.
Putting the statement of reasons to one side, plaintiff alleges that the Board decision was itself completely without basis in fact or logic, and argues that such an arbitrary and capricious action violates her constitutional right to "substantive due process."
The claim that a person is entitled to "substantive due process" means, as we understand the concept, that state action which deprives him of life, liberty, or property must have a rational basis -- that is to say, the reason for the deprivation may not be so inadequate that the judiciary will characterize it as "arbitrary." Since standards of "irrationality" or "arbitrariness" vary from time to time and from judge to judge, applications of the concept*fn5 -- indeed, the concept itself*fn6 -- have generated serious criticism of the judiciary and the judicial function. In this case we need not appraise the viability of the concept, or the extent to which it authorizes federal judges to impose their own views about what is "unrelated to the educational process or to working relationships within the educational institution"*fn7 upon locally elected school boards. For the same critical objection to any procedural due process claim by the plaintiff also forecloses her argument based on "substantive due process."
The Fourteenth Amendment prevents the state from depriving any person of liberty or property without due process of law. As Roth squarely holds, the right to procedural due process is applicable only to state action which impairs a person's interest in either liberty or property. Certainly the constitutional right to "substantive" due process is no greater than the right to procedural due process. Accordingly, the absence of any claim by the plaintiff that an interest in liberty or property has been impaired is a fatal defect in her substantive due process argument.*fn8
The cases upon which plaintiff relies are all readily distinguishable. In Wieman,*fn9 Slochower,*fn10 and Hostrop,*fn11 public employees were dismissed during the terms of their contracts; their property interests were therefore impaired. See Roth, 408 U.S. at 576-577. Moreover, in each of those cases the dismissal impaired a protected interest in liberty.*fn12 Thus, for two reasons, neither of which is applicable here, those employees were entitled to due process. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752, held that the denial of a license to practice law on the ground that the applicant is not of good moral character is a deprivation of liberty;*fn13 more narrowly, the Court held that such a denial must be supported by "evidence in the record which rationally justifies a finding that Schware was morally unfit to practice law."*fn14
The cases from the First and Eighth Circuits on which plaintiff relies all stem from the analysis of the Due Process Clause in Judge Doyle's opinion in Roth, which was approved by a majority of this court but rejected by a majority of the Supreme Court. There is nothing in any of the opinions from those circuits explaining why the absence of either a property or liberty interest should not be fatal to a substantive as well as a procedural due process claim.*fn15 On the other hand, the reasoning which led to the conclusion that a public employee in plaintiff's situation is not entitled to a hearing before the School Board to determine whether there is any basis in fact for a nonrenewal decision applies equally to a claim that a federal court must conduct a hearing to make precisely the same determination.*fn16
The judgment is