APPEAL from the Circuit Court of Williamson County; the Hon.
JOHN H. CLAYTON, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This case involves an action brought by the plaintiff-relator, William Jackson, for a writ of mandamus and a complaint for a declaratory judgment. The petition for the writ and complaint for declaratory judgment were filed on March 28, 1973, in the circuit court of Williamson County. The defendant-respondent did not file an answer but filed a motion for summary judgment. The motion for summary judgment was heard and granted on July 18, 1973. From the court's order, the plaintiff has brought this appeal.
The facts of this case are basically not in dispute. The plaintiff was a teacher hired by the defendant Board of Trustees to teach in John A. Logan College for the school year 1969-1970. He performed duties as a full-time non-tenured faculty member in the athletic department. He was reemployed by the defendant for the academic year of 1970-1971 and then again in 1971-1972. This dispute concerns his failure to be employed for the school year 1972-1973.
The record includes the separate written contract for employment for the academic year 1971-1972. The document itself was one page, set forth the terms of employment, and included "3. That the teacher shall abide by all rules, regulations, and orders established by the Board." The college handbook of John A. Logan College also was in existence and use during all times relevant hereto. It provided among other things that a non-tenured faculty member would be notified annually in writing on or before March 15 of the year of his employment as to whether or not his appointment has been renewed and if renewed, the terms and conditions of employment for the next academic year.
The plaintiff was not notified in writing that he was not going to be reemployed until May 17, 1972. The plaintiff had however, on April 7, 1972, been orally advised by the dean of instructional services and the chairman of the department of health and physical education that he would not be retained in the 1972-1973 academic year due to cost cuts.
The Board of Trustees on March 7, 1972, at a regular meeting of the Board, unanimously passed a resolution directing the administration to hold in abeyance the annual written notification requirement set forth in the college handbook. The Board met again on April 6, 1972, and at that time voted five for and one abstention to continue to hold in abeyance until and including April 26, 1972, the annual written notifications of appointment renewal.
At no time has the defendant Board of Trustees ever taken any action or notified the plaintiff that he would not have his contract renewed for the 1972-1973 academic year other than the notice given first orally and then in writing by the dean of instruction.
The college handbook also contains a section called "Grievance Procedure". *fn1 This section, after setting forth the various procedure for handling grievances, sets "Time Limits" which states that all grievances must be brought within 10 school days after the event that occasioned the grievance occurred.
The plaintiff-appellant presents but one issue for review. "Must the defendant Board of Trustees give the plaintiff written notice of non-renewal on or before March 15, 1972?" However, before we examine the issue presented by the plaintiff we shall first examine the status of the pleadings of the plaintiff and appropriateness of the remedy sought.
The plaintiff filed a petition for a writ of mandamus to issue, to compel the defendant to "forthwith assign the petitioner, William Jackson, as an instructor of physical education at John A. Logan College for the 1972-1973 academic year at a salary determined by the Board to be commensurate with other salaries of faculty members of similar experience and service. * * *"
The plaintiff argues that because the Board failed to notify him by March 15, 1972, he should therefore be automatically employed for the following academic year. He asserts that:
"The Defendant Board of Trustees having failed to comply with the terms of its own rules and regulations requiring that the probationary teachers be given notice on or before March 15 as to whether or not they will be reemployed, the Plaintiff William Jackson is entitled to be considered as reemployed as he had an expectancy of employment, which under the circumstances, could not be denied to him. Board of Regents vs. Roth, 408 U.S. 564 (1972); Perry v. Sinderman, 408 U.S. 593 (1972)."
We have read and studied the cited Roth and Perry cases. We find however that both cases are decided on grounds and issues far removed from the present cause. Indeed the only similarity is that those cases also involved college teachers. Both of these cases were considered together by the United States Supreme Court and both hold that the teacher did not have a right to a hearing because of alleged violations of constitutional rights. These cases shed no light on the case before us.
There are but two alternatives to the problem presented by this case. First, we can assume that the rules and regulations of the "College Handbook" are binding upon the college vis-a-vis the requirement of notification to non-tenured instructors. Second, we can determine that the rules and ...