No. 78-1851.United States Court of Appeals, Tenth Circuit.Argued November 29, 1979.
Decided September 8, 1981.
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C. Emery Cuddy, Jr., Santa Fe, N. M. (Sumner S. Koch of White, Koch, Kelly McCarthy, Santa Fe, N. M., was on the brief), for defendants-appellants.
Steven L. Tucker of Jones, Gallegos, Snead Wertheim, P.A., Santa Fe, N. M., for plaintiff-appellee.
Jeff Bingaman, Atty. Gen. of N. M., and John F. Kennedy, Asst. Atty. Gen. of N. M., Santa Fe, N. M., on the brief, for the New Mexico State Board of Education, amicus curiae.
Appeal from the United States District Court for the District of New Mexico.
Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.
HOLLOWAY, Circuit Judge.
[1] Plaintiff Victor B. Atencio brought this action under 42 U.S.C. § 1983against the Board of Education of Penasco Independent School District No. 4 (“the Local Board”) and its members. Atencio alleged that his discharge from his position as superintendent of the school district violated his constitutional right to procedural due process. After a non-jury trial the district court entered judgment for plaintiff for $27,965.65 as damages under his employment contract, minus any amounts he might earn from July 24, 1978, the date of judgment, to June 30, 1979, the date on which Atencio’s employment contract with the Local Board was to terminate. Plaintiff was also awarded $5,000 in attorneys’ fees.
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[2] Defendants appeal. Among other things they argue that New Mexico law afforded Atencio due process within the meaning of the Fourteenth Amendment and that he therefore failed to allege or establish any claim for relief under § 1983. We must agree and accordingly reverse and remand for dismissal for failure to establish the federal claim. I
[3] Atencio, who had previously worked in the Penasco schools as a teacher and coach, was employed by the Local Board as superintendent on November 1, 1975. At the time of his discharge he was working under a two-year contract which ran from July 1, 1977, to June 30, 1979. The contract provided that he could be discharged during its term only for cause. (Pl. Ex. 2). At a meeting on November 23, 1977, the Local Board voted to suspend Atencio from his duties as superintendent with pay. On March 3, 1978, he was served with a notice of discharge, setting a hearing date and specifying 12 causes for discharge.[1]
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was scheduled. However, this action was then filed in the district court and it appears that as a result no hearing was ever held by the State Board.[4]
II
[6] Atencio does not contend that the hearing afforded him by the Local Board or the further hearing and appeals procedures available under New Mexico law are constitutionally inadequate.[5] The basis for his claim is that his discharge was premised on his allegedly unsatisfactory work performance and that he was denied the conference procedures required in such cases by N.M. Stat.Ann. § 77-8-18, as implemented by the State Board’s Regulation No. 77-1. The regulation provides that prior to the issuance of notice of discharge to an employee for unsatisfactory work performance, an employee is entitled to two conferences with his immediate supervisor and an opportunity to correct his unsatisfactory work performance.[6] This state law requirement, Atencio alleges, created a property interest, and his discharge in the absence of the requisite conference procedures constituted a violation of his federal constitutional rights.
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before the Local Board from which it properly concluded that Atencio was guilty of unsatisfactory work performance, insubordination or incompetency; and that discharge for the latter two causes does not require conference procedures under Regulation No. 77-1. See also New Mexico Board of Education Findings of Fact, Conclusions of Law and Decision in Marquez v. Board of Education, I R. 155-57. Moreover, defendants contend that in any event Atencio was provided with two conferences.[7]
[8] The district court agreed with Atencio that the statute and regulation prescribing the conference procedures created in plaintiff a property right within the meaning of the Fourteenth Amendment in not being discharged without compliance with them. The court held that each of the charges brought against Atencio alleged unsatisfactory work performance and that there was no basis for a finding that he was incapable of performing his job or that he had wilfully refused to obey a valid rule, regulation or policy. It was further determined that the conference procedures were not complied with.[8] The court concluded that failure to comply with the state statute and regulation deprived Atencio of his due process rights under the Fourteenth Amendment and awarded damages for lost pay and attorneys’ fees.III
[9] Atencio relies in large part on this court’s unpublished decision in Quintana v. Archuleta, Nos. 72-1358 and 72-1359 (10th Cir., Feb. 6, 1973). Quintana was an untenured New Mexico school principal whose contract was not renewed. We held that the then-current State Board regulations required that three conferences be held with untenured personnel prior to service of notice of termination for unsatisfactory work performance.[9]
Without any prior conferences the local school board notified Quintana that he would not be reemployed as a principal. As ou Quintana opinion stated, p. 3: “The Board gave [Quintana] no reason for his termination as principal and denied his request for a hearing.”
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[11] We feel that Atencio’s case is distinguishable. Quintana was terminated as principal without any hearing or any other procedural safeguards and was given no reason for his termination as principal. Atencio, on the other hand, was given a hearing by the Local Board and is entitled to a further de novo hearing before the State Board and an appeal to the New Mexico Court of Appeals. Atencio, unlike Quintana, is thus given a state forum in which to argue both his substantive and procedural claims under state law. It is quite possible that Atencio’s claim that his rights under N.M.Stat.Ann. § 77-8-18 and Regulation 77-1 were violated is meritorious.[10] However, we feel the mere fact that a discharge may not be in accordance with state law does not necessarily mean that there has been a federal constitutional violation where hearings are available such as New Mexico affords Atencio. [12] Bates v. Sponberg, 547 F.2d 325 (6th Cir.), involved a dismissal of a tenured professor. The plaintiff alleged that the Board of Regents failed to observe procedural safeguards required by its own regulations. The court held that this was not a constitutional violation, stating:[13] Id. at 329-30. The court distinguished cases such as Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, which held that agencies must abide by their own procedures, as based on principles of administrative law rather than the Due Process Clause. Id. at 330, n. 7. [14] We agree with the Sixth Circuit that a breach of state procedural requirements is not, in and of itself, a violation of the Due Process Clause.[11] “[A]n action under the civil rights statutes is not a plenary review of a challenged state administrative procedure.” Whitsel v. Southeast Local School District, 484 F.2d 1222, 1227 (6th Cir.). The proper mechanism for such full-scale administrative review of the Local Board’s decision in this case is that provided by New Mexico law. [15] Thus there is no federal constitutional right to the conference procedures. The questions whether the allegations contained in the notice of discharge involve unsatisfactory work performance requiring conferences prior to discharge and, if so, whether Atencio in fact was accorded the requisite conferences involve considerations of fact and of state, not federal, law. There is no constitutional violation unlessIt is not every disregard of its regulations by a public agency that gives rise to a cause of action for violation of constitutional rights. Rather, it is only when the agency’s disregard of its rules results in a procedure which in itself impinges upon due process rights that a federal court should intervene in the decisional process of state institutions. (Emphasis added).
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Atencio was denied a fair forum for protecting his state rights. Atencio presented his claim for protection under N.M.Stat. §77-8-18 and State Board Reg. No. 77-1 in the Local Board hearing. That hearing included the rights to notice of charges, assistance of counsel, cross-examination, and presentation of evidence. Further proceedings are available before the State Board and the New Mexico Court of Appeals. These procedures are sufficient under the Due Process Clause. See Harrah Independent School District v. Martin, 440 U.S. 194, 197-98, 99 S.Ct. 1062, 1063-64, 59 L.Ed.2d 248; Prebble v. Brodrick, supra, 535 F.2d at 614-16.
[16] Atencio argues that the Local Board’s conclusion that “[t]he required procedures have been fully complied with . . .” (seen. 7, supra), was erroneous and relies upon contrary findings and conclusions of the trial court. (Answer Brief of Appellee at 12-18). This is not enough to establish a federal constitutional claim. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214, the Supreme Court held improvident a court of appeals ruling that a decision to expel several high school students was a violation of substantive due process due to the insufficient evidentiary basis for the expulsion. The Supreme Court stated:
[17] Id. 420 U.S. at 326, 95 S.Ct. at 1003.[12] [18] This court has likewise held that ” § 1983 is not a vehicle for federal court correction of errors, committed by school administrators in the exercise of their discretion, not rising to the level of violation of specific constitutional guarantees.”Prebble v. Brodrick, supra, 535 F.2d at 617; see also Scheelhaase v. Woodbury Central Community School District, 488 F.2d 237, 241 (8th Cir.).[13] The same rationale should apply here where plaintiff claims a violation of his procedural rights and that the evidentiary basis was insufficient for the Local Board’s findings and conclusions of compliance with state procedures. Under the teachings of Wood v. Strickland, we feel that evidentiary questions arising in thisGiven the fact that there was evidence supporting the charge against respondents, the contrary judgment of the Court of Appeals is improvident. It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503
[89 S.Ct. 733, 21 L.Ed.2d 731] (1969); West Virginia State Board of Education v. Barnette, 319 U.S. 624
[63 S.Ct. 1178, 87 L.Ed. 1628] (1943); Goss v. Lopez, 419 U.S. 565 [95 S.Ct. 729, 42 L.Ed.2d 725] (1975). But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. See Epperson v. Arkansas, 393 U.S. 97, 104 [89 S.Ct. 266, 270, 21 L.Ed.2d 228] (1968); Tinker, supra, [393 U.S.] at 507 [89 S.Ct. at 736] (Emphasis added).
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context and the proper construction of the school regulations are not open for relitigation in this federal suit, given the fact that there was some evidentiary basis for the rulings against Mr. Atencio and the construction of the regulations was not implausible. Wood, supra, 420 U.S. at 326, 95 S.Ct. at 1003.
[19] Where a property right is involved such as Mr. Atencio’s which is protected by the Due Process Clause, it may not be taken away “without adherence to the minimum procedures required by that Clause.” Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725. That Clause, however, has been adhered to in our opinion since Atencio was afforded a Local Board hearing for presentation of his evidence and assertion of his claim of denial of the state conference procedures, and since he has an appellate procedure therefor as well. His federal due process rights are not infringed and he may pursue his state law claims before the State Board and state courts.[14] [20] In view of our conclusions we need not reach defendants’ further arguments as to exhaustion of state remedies, abstention and failure to join the State Board as an indispensable party. The judgment is reversed and the case is remanded for dismissal of the action.