Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 71 C 147 RICHARD B. AUSTIN, Judge.
Fairchild, Chief Judge, Swygert and Tone, Circuit Judges.
Plaintiff, a former president of a public junior college who was discharged by the college board in July, 1970, brought this civil rights action, alleging that he was wrongfully terminated in violation of his federal constitutional rights of free speech and procedural due process and his contract rights. In a bench trial the District Court found the issues in favor of the defendants. We hold that the District Court's findings of fact on the first amendment issue are not clearly erroneous, but that plaintiff's procedural due process right was violated by the failure of the defendants to afford him a hearing and he is therefore entitled to recover damages against the board but not the individual defendants, who are protected by official immunity. We remand for a hearing on damages, which need not be before a jury.
In his amended complaint against the board and its members, plaintiff asserted, in Count I, a claim for the alleged infringements of his rights described above and, in Court II, a claim for conspiracy to deprive him of those rights. The District Court dismissed this complaint for failure to state a claim upon which relief could be granted, but this court reversed that judgment and remanded for trial. Hostrop v. Board of Junior College Dist. 515, 471 F.2d 488 (7th Cir. 1972), cert. denied, 411 U.S. 967, 36 L. Ed. 2d 688, 93 S. Ct. 2150 (1973) (Hostrop I). On the eve of trial the District Court allowed further amendment of the complaint to add a Count III, specifically alleging breach of plaintiff's contract rights. The court refused, however, to permit a jury trial of that claim, no jury demand having been filed for the original claims.
Hostrop I held that plaintiff had stated a violation of his first amendment rights by his allegations that the primary reason for his dismissal was his writing of the memorandum on the ethnic studies program described in that opinion. 471 F.2d at 491-494. The District Court found as a fact, however, as follows:
". . . I find that Hostrop's dismissal was not motivated by his expression of views in the Ethnic Studies memorandum. I conclude that, as a matter of fact, his termination was fully justified and was the culmination of a series of confrontations and incidents which include . . . the timing and concealment of the Ethnic Studies memorandum [and seven other listed incidents]."
Even if the exercise of a right protected by the first amendment were only one of several reasons for dismissal, the dismissal would be unlawful, so we consider that possible reason without reference to others. As we construe the District Court's findings, however, plaintiff was not dismissed because of his exercise of first amendment rights. The court's phrase, "the timing and concealment of the Ethnic Studies memorandum," read in the light of the evidence, must be taken as referring to the circumstances surrounding the disclosure of the memorandum to the board: Plaintiff initially gave copies of the memorandum only to his "cabinet," and instructed them not to discuss it with anyone else. Only when he learned that a copy of the memorandum had found its way into the hands of the student newspaper and was to be published the next day did he furnish copies to the board members. The evidence indicates, and the District Court could properly have found, that the board members were disturbed because a memorandum proposing the repudiation of their commitment to continue the ethnic studies program for another year was withheld from them until the fortuitous leak to the newspaper compelled its disclosure to them, which occurred less than three weeks before the date proposed in the memorandum for effectuation of this highly controversial action; and this "timing and concealment" rather than "his expression of views" in the memorandum constituted one of the reasons for the board's action. This we think is the meaning of the District Court's finding, which we cannot say is clearly erroneous. These facts do not show a violation of plaintiff's first amendment rights.
Procedural Due Process Right
This court held in Hostrop I that plaintiff had stated a deprivation of liberty under Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), in his allegation that the board had damaged his reputation by charging him with lack of veracity, 471 F.2d at 494, but the District Court found from the evidence that Hostrop himself had made public the board's charges when it had no intention of doing so. The court held that his standing in the community was therefore not injured by any action of the board, if it was damaged at all. We agree. Plaintiff's argument that he had to disclose the reasons to quell the rumors which were circulating does not establish that his reputation was injured by board action. Once the board decided to terminate plaintiff, the most it could do to prevent injury to his reputation was to maintain silence as to its reasons. See Shirck v. Thomas, 486 F.2d 691, 693 (7th Cir. 1973). The board is not responsible for plaintiff's decision that it would be better for his reputation to publish the reasons.
Hostrop I also held that plaintiff's complaint alleged facts showing a deprivation of a property right. 471 F.2d at 494. The District Court found, however, that plaintiff had no legitimate claim of entitlement to his job because he had deceived the board members by omitting from the form of renewal contract he submitted to them for approval a clause the earlier contract had contained requiring him to devote full time to his job as president. Defendants assert, as additional reasons that plaintiff does not have such a claim, that plaintiff's contract was void because its term exceeded one year, and that the deletion of the full-time clause prevented the meeting of minds requisite to the making of a contract.
We think plaintiff had a claim of entitlement amounting to a property interest within the meaning of Board of Regents v. Roth, supra, 408 U.S. at 577-578, and Perry v. Sindermann, 408 U.S. 593, 601-602, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972), even assuming that, as the District Court found, he deceived defendants by the manner in which he submitted the form for the new contract. Apart from the fact that the earlier contract, covering the period July 1, 1969 to June 30, 1971, would still have been in effect if the new contract had not superseded it, the new contract was at most voidable for fraud, not void. So long as there was a genuine dispute on the issue of fraud, plaintiff had a claim of entitlement that gave him a right to a hearing. The same is true with respect to the issue raised by the contention that there was no meeting of the minds, assuming that issue to be analytically different from the fraud issue.
Defendants' argument that both contracts were void because their terms exceeded one year is also without merit. Even if there were a one-year limitation under Illinois law, a contract would not, we think, be invalid in its entirety but only for the period in excess of one year. But our examination of Illinois law persuades us that the making of a contract for a term in excess of one year was within the authority of the board.
In arguing that both plaintiff's original and superseding two-year contracts were void ab initio, defendants rely on Illinois cases holding it beyond the power of a school board to employ teachers for a period beyond a school year, a rule originally based on a construction of the statute, Stevenson v. School Directors, 87 Ill. 255, 257-258 (1877), and on the principle that one board should not be able to bind a later board, id., at 258-259; Davis v. School Directors, 92 Ill. 293, 296 (1879). In the case at bar, the board, prior to the April 1970 board election, purported to extend plaintiff's contract until June 30, 1972, or two years beyond its term. After the mid-April election, the new board did not object to plaintiff's new contract and permitted him, on July 1, 1970, to commence serving under it. This adoption of the contract by the new board meant that plaintiff had a valid contract at least through June 30, 1971. This is so regardless of whether plaintiff was working under his original (1969-1971) or his superseding (1970-1972) contract.
Moreover, we think that the board was empowered to enter into contracts for a duration of longer than one year. In 1927, the Illinois General Assembly conferred on school boards the power to contract with teachers, principals, and superintendents for a period of three years, after expiration of a two-year probationary period. See Sloan v. School Directors of District No. 22, 373 Ill. 511, 26 N.E.2d 846 (1940). In Sloan the Illinois Supreme Court determined that the Stevenson and Davis cases, supra, were no longer applicable because "they were ...