Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-1634 -- Abraham L. Marovitz, Judge.
Before Fairchild, Chief Judge, Bauer, Circuit Judge, and Baker, District Judge.*fn*
The narrow question presented by this appeal is whether a public employee can maintain an action under 42 U.S.C. § 1983 or § 1985(3) when his termination is announced, and presumably defamatory statements are made about him, but retractions are made and he is "rehired" before the effective date of the termination. We agree with the district court that on these facts no claim for infringement of a liberty or property interest can be made out, and thus affirm the judgment appealed from.
In the winter of 1976 the plaintiff, Donald Elbert, was superintendent of schools for the Lanark Community School District. Although he was employed under a two-year contract which, on its face, would expire in June of that year, there seems to be no dispute that by force of Illinois law he was entitled to a third year as superintendent.*fn1 On March 8, 1976, however, the school board, by a four to three vote, decided not to renew the superintendent's contract for the 1976-77 school year. On March 9, Elbert was formally notified of that vote. The school board reaffirmed its decision at a public meeting held on March 23, 1976, and for the first time stated reasons for the termination, which included "misuse of public funds." On April 6 several of the board members (defendants Voss, Holesinger, and Zier) met and prepared a "bill of particulars" which described in more detail the alleged misuse of public funds. The individual defendants gave this document to the local newspaper where it was printed on April 8. Although the plaintiff several times during this period requested a hearing so that he could rebut the charges against him, none was ever scheduled.
On April 10, 1976 a school board election was held at which three new board members were elected. Two of the board members who had opposed Elbert were defeated in that election. The new board met in a series of executive sessions, and the plaintiff was given the opportunity to meet with the three new board members May 3, 1976. On May 10, 1976, the board voted to offer the plaintiff a contract for the upcoming school year. At the same time a public statement was issued saying that although "some errors of judgment were made by Mr. Elbert ... at no time did Mr. Elbert misuse public funds." The plaintiff, whose attempts to find employment elsewhere had been unsuccessful, signed the contract and served as superintendent of the district until his resignation in June, 1978.
As finally ruled upon by the district court, the plaintiff's complaint against the school board and four of its members contained three counts. Count I alleged that the events described above constituted a deprivation of liberty and property without due process of law, in violation of 42 U.S.C. § 1983. Count II charged the defendants with conspiracy to deprive the plaintiff of the equal protection of the laws, in violation of § 1985(3). Count III alleged that in retaliation for filing this suit the defendant board unlawfully denied Elbert a raise to which he otherwise would have been entitled. The district court judge dismissed Counts I and II, stating that, since Elbert remained in the continuous employment of the board, there was no loss of property rights and that the allegation of loss of liberty rights did not meet the "stigma plus" test of our decision in Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976) cert. denied, 430 U.S. 960, 97 S. Ct. 1610, 51 L. Ed. 2d 811 (1977). The defendants' request for summary judgment on Count III was denied, however, and that action remains pending in the district court. Following the procedure established by Fed.R.Civ.P. Rule 54(b), the district court judge entered judgment for the defendants on Counts I and II. This appeal followed.
Had the school board not reconsidered its earlier decision to terminate the superintendent, and had he indeed left the district, we have little doubt that a claim could have been stated under § 1983. Taking the facts pleaded as true (and there does not seem to be any real dispute that the ones presented here are true), the state law setting forth the tenure of school superintendents gave Elbert a claim of entitlement to employment for the 1976-77 school year and thus a property interest in that job. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). When the board voted to deny Elbert employment for that school year without providing even the rudiments of a hearing, and had that vote not been reconsidered, the superintendent would have been deprived of a property interest without due process of law, and the complaint would clearly state a § 1983 cause of action. With the addition of the charge by the board that the superintendent was being terminated for misuse of public funds (and the allegation by the plaintiff that that charge was baseless and maliciously made) a claim of a deprivation of liberty rights without due process also could have been stated. Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976).
Similarly it appears that had the board accused Elbert of misusing public funds, but had not taken steps to terminate his employment (although such a scenario is a bit difficult to imagine), there would be no actionable claim for an unlawful deprivation of a liberty interest. Defamatory publications by a state official, however seriously they may harm someone, do not deprive that person of any liberty interests protected by the due process clause. Paul v. Davis, 424 U.S. 693, 712, 96 S. Ct. 1155, 1165, 47 L. Ed. 2d 405 (1976).
Our case is neither of these. Here the school board in March took the action which it thought would effectively terminate Elbert's employment, but in May, before that termination became effective, reconsidered its decision and offered to renew the contract. Things said in connection with the March events quite possibly would have amounted to an infringement of a liberty interest without due process, but only if they were "accompanied" by a failure to rehire. Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir. 1976). The defendants insist that the actions of May are the important ones-that as long as the superintendent in fact kept his job there was no deprivation of a liberty or property interest. Elbert instead would have us focus on the events of March and early April and hold that since the board's actions were complete at that time a claim for infringement of liberty and property rights could be stated. Under that theory the events of May might serve to mitigate any damage award to which he would otherwise be entitled, but would not undo his entire cause of action.
We have no difficulty in concluding that the complaint failed to state a cause of action under § 1983 for deprivation of a constitutionally protected property right. State law gave Elbert a right to be employed as superintendent of the Lanark District for the 1976-77 school year. Elbert was employed by the district for that school year. While there was a time between March and May of 1976 when the board intended not to renew the superintendent's contract, the contract was renewed, and no break in employment ever occurred. Under these circumstances we cannot see how any property right was infringed.
The question of whether a liberty interest was infringed without due process is far more difficult. The test of whether a liberty interest has been infringed in an ...