Section 5.6 Deprivation of Property or Liberty

• Library: School Law (2003 Ed. + 2016 Supp)

1. (§5.6) Deprivation of Property or Liberty

The Fourteenth Amendment to the United States Constitution provides that the government, including public schools, may not “deprive any person of life, liberty or property without due process of law . . . .” In Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), the United States Supreme Court held that a public employee is entitled to procedural due process when a governmental employer deprives the employee of an interest encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some type of prior hearing is paramount.

A deprivation of a protected interest in liberty occurs when a school district, in declining to rehire an employee, makes a charge against the employee that damages his or her standing in the community or imposes a stigma or other disability that forecloses the employee’s freedom to take advantage of other employment opportunities. Non-renewal of a teaching contract alone does not constitute a deprivation of an interest in liberty. Roth, 408 U.S. at 574, n.13; Buhr v. Buffalo Pub. Sch. Dist. No. 38, 509 F.2d 1196, 1199 (8^th Cir. 1974); Meyr v. Bd. of Educ. of Affton Sch. Dist., 572 F.2d 1229 (8^th Cir. 1978). If, however, the reasons for non-renewal are announced publicly or are incorporated into a record made available to prospective employers, the reasons may affect a teacher’s chances of securing another job. Buhr, 509 F.2d at 1199.

A deprivation of a constitutionally protected interest in property is largely determined by applicable state law. The Roth,408 U.S. 564, Court stated that a person can have a property interest in continued employment, but to have such an interest, the person must have more than an abstract need or desire for it. Id. at 577. He or she must, instead, have a legitimate claim of entitlement to it.

To be entitled to a pretermination hearing, an employee must show a legitimate claim to continued employment either through:

· state statutes or district policies, practices, or rules, Roth, 408 U.S. at 577;

· a currently in-place employment contract; or

· common understandings promulgated and fostered by the school officials, Perry v. Sindermann, 408 U.S. 593 (1972).

In Missouri, the non-renewal of a probationary teacher’s annual contract does not deprive the teacher of a protected property right. Meyr, 572 F.2d 1229.

When state law confers on public employees the right to retain their positions “during good behavior and efficient service” and not to be dismissed “except . . . for . . . misfeasance, malfeasance, or nonfeasance in office,” such employees...