Memorandum from Haywood to Sherwood

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14EMORANDUM

JuIy 2, 1984

TO : PETER SHERVIOOD

FRO}I : ARTHUR HAYVIIOOD

RE : Reinstatement of Tenured Public Schoo1 Teacher

FACTg:

A tenured teacher in public employment in Alabama

was discharged on the grounds of conviction on a felony charge.

However, the felony conviction was later reversed.

QUESTTONI:

Does a tenured teacher in public employment in Alabama

have the right to reinstatement upon reversal of a felony convic-

tion for which they were discharged?

SHORT ANSWER:

In order to gain the right to reinstatement a tenured

teacher must establish that their discharge either violated
procedural due process or was 'arbitrarily unjust'. In this case

the wrongful discharge occurred because the teacher was terminated

before the final determination of her innocence by the courts.

Such a premature terrnination is arguably 'arbitrarily unjust'.

However, the standard for determining what is arbitrarily unjust

under Alabama law is relatively undeveloped. Facts suggesting a

violation of procedural due process were not available. once a

wrongful discharge is established then reinstatement of the

teacher is an appropriate remedy under Alabama 1aw.



Di scuss ion

A public school teacher with continuing service status

or tenure in Alabama should receive the utmost consideration when

assessing their rights to continudemployment.

After a teacher attains tenure, he or
she has an expectancy of future employment
similar to that of a public employee under
a system of civil service, see e.9., City
of I'robile v. Irtitchell, 294 ALa- 474, 318
So.2d 708 (1975), and may be discharged
only for just cause as specified under
Code 1975, S L6-24'8, Pursuant to the
procedures established in S 16-24-9 and
s L6-24-L0.

Barqer v. Jefferson Ctv. Bd. of Bd. , 372 So.2d, 307, 309 (ala.

LgTg). Indeed, the purpose of the teacher tenure laws is to

"insure to the teachers some measure of security." Id. citing

Bd. of Ed. of [larshaII Ctv v. Baugh, L99 So. 822 (ala. f 94I).

Courts should therefore seek to preserve the continuing

employment of a

pardy as in the

stated:

teache{tenuredt when such employment is in jeo-

present case. The Alabama Supreme Court further

l,loreover, this Court has observed that
the teacher tenure statutes should be fib-
erally construed in favor of the teachers
who constitute the class designated as the
primary beneficiaries of these statutes.
State Tenure Com'n v. l,ladison County Board
of Ed., 282 ALa. 658, 2L3 So.2d 823 (1968);
Board of Educ. v. Baugh, 240 AIa. 391, L99
So. 822 ( r94I ) .

Id. at 309.

A tenured teacher may be discharged tor the following

reasons under the Alabama statutory frarnework: "incompetency,

insubordination, neglect of duty, immorality, justifiable de-

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crease in the number of teaching positions or other good ano 3ust
cause ." Ala. code s 16-24-8 (1977). The felony convic-
tion of a tenured teacher would suffice as a good and Just cause

for a discharge.

Once a tenured teacher has been discharged a state circuit
court upon a writ of mandamus may review and reverse the dis-
missal by the state Tenure commission. r4 re sumter cty. Bd.

of Ed. v. Alabama State Tenure, 352 So.2d Il37 (AIa. 1977). OnIy

two grounds for reversal of the State Tenure Commission exists
for the court: l) failure of dismissal proceedings to conform

with statutory procedural due process requirements, and 2) dis-
missar of a teacher on grounds which are 'arbitrarily unjust.r
Id. at I138.

The facts given to this researcher do not indicate any

procedural due process issues. However, the cancellation of the

teacherrs contract before the completion of the Iitigation may be

considered premature and arbitrarily unjust. In order to sustain
a claim for wrongful discharge, the plaintiff teacher must show

that the dismissal was unjust by "the preponderance of the evi-
dence and the overwhelming weight of the evidence." In re Sumter

ctv. Bd. of Bd. v. Arabama state Tenure, supra at 1139. However,

the standard for deternnining an arbitrarily unjust discharge

is relatively undeveloped in Alabama.

In State Tenure Comrn v. Madison Ctv. Bd. of Ed., 2I3

so.2d 823 (eta. 1968) a public school teacher with tenure was

dismissed on grounds of incompetency, negrect of outy, insubordi-
nation and imr,',ora1ity. These charges were essentially based upon

the co::imunity's conflict with the teacher over ways and means of
preparing for 4H, FFA and FHA livestock exhibits and shows. The

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court determined that the beharrior of the teacher was not irn-

proper, but within his discretion and that therefore his dis-

missal was arbitrarily unjust.

Arguabry, the cancellation of the teacherrs con-
tract in our case is unjust because the ultimate outcome of her
litigation had not been determined at the time of contract
cancerration. rnstead of issuing a premature contract can-
cerration, a suspension wourd have been appropriate. A sus-
pension takes into account the possibility of acquittar or re-
versal of conviction and the danger of later conviction. Fur_
there, bY sustaining the contract cancellation a court prepetuates
the stigma and taint associated with criminals. such a stigma
would be entirely inappropriate since the teacherrs conviction
was reversed- Sustaining the contract cancellation would be

clearly unfair to the teacher.

If the arbitrarily unjust grounds for the teacher dis-
charge are established, then reinstaternent is an appropriate
remedy. rn Madison ctv. Brd. of Ed. v. wiqlev, 25g so.2d 233
(ara. 1972) the Arabama supreme court affirmed the circuit
courtrs award of reinstatement for a tenured teacher who was

wrongfurry discharged. The court clearly stated:
llhen the County Board refused toreinstate the teacher after this
court's decision that its action
was arbitrarily unjust, one of the
teacher I s remedies was to seek
specific performance of the contract.

Id. at 236.

schoor Bd., 6 so.2d 696 (La. Lg4-z)(where tenured teacher was

improperly discharged and consequently awarded reinstatement as

part of her remedies ) .

see also state ex re}. Brovles v. Tangipahoa parish

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Reinstatement for an improperly discharged tenured

teacher has only been denied in Barger v. Jefferson Cty. Bd.

of Ed., et dI., 372 So.2d 307 (AIa. L979) where a tenured

teacherfs teaching certificate expired. I{hile the teacher was

wrongfully discharged on other grounds, reinstatement was not

awarded because the teacher lacked a valid teaching certificate.
This case is clearly distinguishable from the present one since

the only obstacle to reinstatement here is an improper discharge

due to the reversal of the teacher's conviction. As a result,
the general rule for providing reinstatement to a tenured teacher

applies in this case.

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