Abstract
Purpose of the Study. The purpose of this study was to investigate the legal circumstances under which nontenured professional school employees have rights to continuing employment or de facto tenure because of constitutionally protected rights of liberty, property, substantive due process, and/or procedural due process, and to review proposed legislation in Florida related to modification of tenure coverage of instructional personnel.Procedures. The basic procedure utilized in this study was historio-legal research, involving the analysis and interpretation of constitutional, statutory, contract, and case law related to employment rights.Results of the Investigation. Amendment Fourteen guarantees substantive and procedural due process rights but does not provide job security for public employees. A person, tenured or nontenured, may not be denied public employment based on an unconstitutional reason nor may public employment be based on the surrender of constitutional rights. Nonreappointment of nontenured employees, even if based in part on the exercise of constitutionally protected conduct, has been upheld by the courts if the employer could prove that the same decision would have been reached absent the conduct.De facto tenure, or statutory or contract provisions furnishing nontenured employees with an expectancy of continuing employment, create a property interest in employment and procedural due process must be provided prior to nonrenewal. More than a unilateral expectation, abstract need or desire for a benefit must exist to establish a property interest. There must be a legitimate claim of entitlement to it. Then, state action depriving an individual of life, liberty, or property may not be arbitrary or capricious.Deprivation of liberty exists when, as a result of state action, an individual's good name, reputation, honor or integrity is at stake, or a stigma is imposed limiting his ability to pursue future employment opportunities. Damage to professional reputation alone is insufficient and due process is required only when charges seriously damage a person's standing in the community or damage involves a tangible interest such as employment. Not rehiring a person, who remains as free as before to seek other employment, does not constitute a deprivation of liberty.Judicial interpretations of nontenured employees' rights to continuing employment have been inconsistent. The only procedural due process requirement consistently found was notice prior to nonrenewal. The automatic right to a statement of reasons for nonretention and a hearing has been rejected by the Supreme Court. When procedural due process rights are granted, denial of rights to notice, statement of reasons, or hearing prior to nonrenewal warrants redress by the employee.Implications. The major issue consistently arising involves whether or not a statement of reasons or a hearing are required prior to contract nonrenewal. Before procedures are invoked it must be determined what rights, if any, are involved. The employee bears the burden of proof and if no deprivation of rights exists, then under 42 U.S.C. sec. 1983 there is no cause for action.The courts have maintained that although a nonreappointed person may be less attractive to other employers, no liberty interest is involved. A person's standing in the community, or honor or integrity, may not be affected but professional reputation may be and some limitation placed on his ability to secure future employment. Nonretention impacts on an educator's career even if no real stigma is attached.Nonrenewal may occur as a result of: reduction-in-force, administrative reorganization, termination for just cause, nonrenewal for no stated reason, or voluntary separation. When an employee is injured resulting from board action, although reinstatement is generally not awarded, de minimus due process is required when a liberty or property interest is at stake.