Shatting v. Dillingham City School District , 617 P.2d 9 ( 1980 )

OPINION

Before CONNOR, BOOCHEVER,^* BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

BURKE, Justice.

In this case, a non-tenured teacher challenges a school board’s decision not to renew his contract. We conclude • that the school board acted properly.

Jay Shatting, a non-tenured teacher, was employed to teach in the Dillingham City School District during the 1975-76 and 1976-77 school years. In May 1977, the Dillingham City School Board (Board) informed Shatting by letter that he would not be retained for the following year.¹ When Shatting requested a statement of cause, pursuant to AS 14.20.175(a),² the Board sent him a second letter setting forth the following reasons for its decision:

1. Your classes are not challenging enough to students with high ability.

2. Your use of abusive language when dealing with students.

3. Lack of interest in teaching.

4. Your changing moods in the classrooms.

5. Continually out of classroom.

Shatting then requested a hearing, likewise pursuant to AS 14.20.175(a). The Board held a public hearing on June 14, at which sworn testimony was taken. Shat-ting was represented by counsel, who called witnesses and cross-examined opposing witnesses. Following the hearing, the Board voted not to retain Shatting, and on June 22, it sent him written notice of that decision. One month later, Shatting filed both a complaint and a notice of appeal in superior court, contending that the Board’s decision not to retain him was illegal because it was arbitrary and capricious, and not based on properly established good cause. Shatting’s suit named as defendants the Dillingham City School District (District), the Dillingham City School Board, and the State of Alaska.

In August, in response to the State’s motion for judgment on the pleadings under Civil Rule 12(c), the superior court dismissed Shatting’s suit against the State because it was not a proper party defendant. The grounds for the decision were that (1) it had delegated control of educational functions to the City of Dillingham, (2) Shatting was not an employee of the State, and (3) the State had no authority to hire or fire Shatting. In response to a motion to dismiss, the court granted summary judgment in favor of the Board and the District,³ after concluding that the Board had complied with all statutory requirements and that none of Shatting’s constitutional rights had been violated. This appeal followed.

1. Appeal of the District and the Board

The motion to dismiss that was filed by the District and the Board did not specify under which rule the motion was being made. The superior court, however, treated the motion as if it were a motion for summary judgment.⁴ Accordingly, we shall review its ruling under the standards applicable to the granting of a motion for summary judgment.

The issues to be determined are whether there were genuine issues of material fact and, if nof, whether the District and the Board were entitled to judgment as a matter of law. Rule 56, Alaska R.Civ.P.; Moore v. State, 553 P.2d 8,15 (Alaska 1976). In reaching our decision we must draw all reasonable inferences in favor of Shatting, the non-moving party. Clabaugh v. Bottcher, 545 P.2d 172, 175 n.5 (Alaska 1976).

Although there is apparently disagreement over whether particular events occurred in Shatting’s classroom and whether the District conducted a proper evaluation of Shatting as required by Department of Education regulations, these facts were not material to the superior court’s determination of this case. It is only issues of material fact that preclude the granting of a motion for summary judgment. See Carlson v. State, 598 P.2d 969, 972 n.5 (Alaska 1979). The issues before the superior court were: (1) whether Shatting was entitled to judicial review of the Board’s decision not to retain him and (2) whether the Board, on the basis of the information presented to it, acted properly in deciding not to retain Shatting. The material facts pertaining to these two issues were not in dispute. Thus, the only issue left for our determination is whether the Board and the District were entitled to judgment as a matter of law.

2. Right to Judicial Review

The superior court concluded that Shatting had no right to judicial review of the Board’s decision. In reaching this conclusion the court relied on AS 14.20.205, which provides: “If a school board reaches a decision unfavorable to a teacher, the teacher is entitled to a de novo trial in the superior court. However, a teacher who has not attained tenure rights is not entitled to judicial review according to this section.”

We believe the superior court erred in concluding that AS 14.20.205 totally precludes judicial review in cases such as this. While the statute does not extend the tenured teacher’s right to a trial de novo to a non-tenured teacher such as Shatting, neither does it preclude a more limited form of judicial review of the school board decision. We therefore hold that Shatting had a right to judicial review, on the record, of the Board’s decision.⁵

3. Decision Not to Retain Shatting Although the superior court found that Shatting did not have a right to judicial review of the Board’s decision, the court did, in fact, review the record of the proceedings leading to that decision and determined that the Board had acted properly. We affirm the decision of the superior court.

AS 14.20.175(a) provides in part: “A teacher who has not acquired tenure rights is subject to nonretention ... for any cause which the employer determines to be adequate.”⁶ On its face this section grants to a school board virtually unlimited discretion in deciding whether to deny continued employment to non-tenured teachers. Despite the broad language of the statute, however, we think that the board’s discretion is subject to certain limitations. It is clear, for example, that a school board may not deny continued employment to a teacher because of the teacher’s exercise of first amendment rights. See, e. g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Just as clearly, a school board may not deny continued employment to a teacher if to do so would deprive the teacher of other rights that are guaranteed by constitution or statute. See, e. g., Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973); AS 18.80.220 (declaring certain employment practices to be unlawful).

In addition to constitutional and statutory limitations, Shatting contends that a school board’s discretion is subject to further limitation by the evaluation standards established by the Department of Education, and that a teacher may be “non-retained” only for failure to meet the evaluation standards.⁷ He relies on 4 AAC 19.010: “[FJormal evaluations shall serve as a method for gathering data relevant to subsequent employment status decisions pertaining to the person evaluated.” We believe, however, that this regulation, promulgated by an administrative agency, cannot operate to limit the broad discretion that was intentionally given to local school boards by the legislature, and that a school board’s decision not to renew the contract of a non-tenured teacher may be “for any cause which the employer determines to be adequate.” AS 14.20.175(a).

Shatting also contends that the Board’s discretion is limited by the requirement that it not be arbitrary or capricious,⁸ apparently because the Board is required by AS 14.20.175(a)⁹ to give him a statement of cause and a hearing. Assuming, arguendo, that Shatting is correct, our review of the record fails to convince us that the Board’s action in this case was arbitrary and capricious.

The United States Supreme Court has held that a non-tenured teacher whose contract is not renewed has no constitutional right to a hearing or a statement of cause. Roth v. Board of Regents, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556 (1972). AS 14.20.175(a), therefore, in requiring a statement of cause and an opportunity to be heard, exceeds constitutional requirements. Since it is clear from the record that the Board fully complied with the statutory requirements, there was no violation of the Alaska Constitution or statutes. For these reasons, we conclude that the action of the Board was entirely proper.¹⁰ This holding, we believe, is consistent with our past decisions, where we have stated that “[t]he rights of a non-tenured teacher who is simply not retained at the end of his period of employment are relatively limited. He has no constitutionally protected interest in public employment.” Van Gorder v. Matanuska-Susitna Borough School District, 513 P.2d 1094, 1095 (Alaska 1973).

The judgment of the superior court is AFFIRMED.

RABINOWITZ, C. J., not participating.

1 . Alaska’s statutory scheme recognizes a distinction between “nonretention” and “dismissal.” AS 14.20.207 provides in pertinent part:

In §§ 10-210 of this chapter

(5) “nonretention” means the election by an employer not to re-employ a teacher for the school year or school term immediately following the expiration of the teacher’s current contract; and

(6) “dismissal” means termination by the employer of the contract services of the teacher during the time a teacher’s contract is in force, and termination of the right to the balance of the compensation due the teacher under his contract.

2 . AS 14.20.175(a) provides:

Nonretention, (a) A teacher who has not acquired tenure rights is subject to nonretention for the school year following the expiration of his contract for any cause which the employer determines to be adequate. However, at his request, the teacher is entitled to a written statement of the cause for his non-retention. The boards of city and borough school districts and regional educational attendance areas shall provide by regulation or bylaw a procedure under which a nonre-tained teacher may, at his request, be heard informally by the board.

3 .The grounds for dismissal alleged in the motion were (1) a non-tenured teacher has no right to judicial review of a school board’s decision not to retain him, (2) Shatting did not allege any violation of his constitutional rights, (3) Shatting was not protected from “arbitrary and capricious” nonretention because he had no constitutionally protected interest in his job, and (4) the court lacked subject matter jurisdiction.

4 . When matters outside the pleadings are presented to the court, Rules 12(b) and 12(c), Alaska R.Civ.P., authorize the court to treat motions to dismiss under Rules 12(b)(6) (failure to state a claim) and 12(c) (judgment on the pleadings) as motions for summary judgment under Civil Rule 56. The superior court in this case had before it, in addition to the pleadings, the entire administrative record, including a transcript of the hearing before the Board and copies of the affidavits submitted to the Board. See Stuyvesant Ins. Co. v. District Director, Immigration & Naturalization Serv., United States Dep’t of Justice, 407 F.Supp. 1200, 1202 (N.D.Ill.1975) (filing administrative record converted motion to dismiss to motion for summary judgment; applying Fed.R.Civ.P. 12(b)).

5 . Although a review on the record is all that is required, in its discretion the superior court may grant a trial de novo. See AS 22.10.020 (“hearings on appeal from a final order or judgment of a subordinate court or administrative agency shall be on the record unless the superi- or court, in its discretion, grants a trial de novo, in whole or in part”).

AS 14.20.175(a) provides that school boards shall establish a procedure under which a non-retained teacher may “be heard informally by the board.” We note that, although this hearing may be “informal,” it must be conducted on the record; otherwise the teacher’s right to a review on the record would be meaningless.

6 . AS 14.20.175(a) is quoted in full in note 2 supra.

7 . 4 AAC 19.020 provides:

SCOPE OF EVALUATION. The evaluation should emphasize such factors as teaching or administrative skills, processes and techniques and interpersonal relationships with students, parents, peers and supervisors, as well as those additional factors which the school district considers relevant to the effective performance of its professional employees. The standards for performance must be measurable and relevant.

8 . But see Roth v. Board of Regents, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

9 . AS 14.20.175(a) is quoted in note 2 supra.

10 . Having reached this conclusion, we need not address the issue of whether the State may also be sued because of actions of the Board or the District. That issue is now moot.