Barbee v. Union City Bd. of Educ., No. 13-5188 (6th Cir. Mar. 17, 2014)
Abstract: A U.S. Court of Appeals for the Sixth Circuit three-judge panel, in a 2-1 split, has ruled that former teacher was not entitled to tenure protections because school board’s election to grant him tenure was provisional conditioned on his being reemployed for the next year. The panel determined that in order to achieve tenured status in Tennessee a teacher must show: (1) that the director of schools recommended teachers to the school board as being eligible for tenure; (2) the board must elect based on the director’s recommendation teachers who have attained or are eligible for tenure and fix the salaries of and make written contracts with the teachers; and (3) the teacher must satisfy the four tenure-eligibility requirements detailed in the Tennessee Teacher Tenure Act (TTTA). It found the former teacher failed to satisfy the fourth of the four requirements, i.e., (4) that the teacher be “reemployed by the board for service after the probationary period.”
The panel, rejecting the former teacher’s argument that the board’s decision to extend tenure to him acted as immediate reemployment of him, stated “that on nearly every occasion when a Tennessee state court has had occasion to discuss the [TTTA’s] reemployment requirement, it has either explicitly or implicitly indicated that reemployment refers to the school year that follows the three-year probationary period.” It concluded that the TTTA’s plain language and relevant caselaw favored the school board’s contention that the teacher was not reemployed and, therefore, not tenured.
Facts/Issues: Preston Barbee was employed by the Union City Board of Education (UCBOE) as a teacher and assistant basketball coach at Union City High School (UCHS) from the 2008-09 school year to the end of the 2010-11 school year. Despite several incidents that marred his employment record, the director of schools recommended Barbee for tenure in April 2011. The school board approved that recommendation and “elected” Barbee for tenure.
However, following the board meeting at which he was “elected,” multiple student allegations concerning Barbee surfaced, and these allegations eventually led to his termination. Although he denied the allegations, Barbee was suspended without pay. On May 2, 2011, Barbee met with the director of schools and UCHS’s principal. At this meeting, Barbee was “placed on leave for the rest of the school year, with pay.” Barbee was also informed via letter that as “a non-tenured teacher” he would “not be rehired to teach in the Union City School System for the 2011-12 school year.”
After Barbee’s contract was non-renewed, several letters were exchanged between the parties’ attorneys. In June 2011, an attorney from the Tennessee Education Association (TEA) sent the director of schools a letter concerning Barbee’s tenure status, stating that the minutes from the April 2011 board meeting indicated that Barbee was reemployed, and that Barbee was tenured. In response, UCBOE’s attorney, Charles Cagle, sent a letter to TEA concerning Barbee, stating that “conferral of tenure status does not become immediately effective” until after the teacher is reemployed for the following school year. According to Cagle, because Barbee was not reemployed, he was not tenured.
In September 2011, Barbee filed suit in state court against UCBOE and the director. The defendants removed the case to federal district court. The district court granted summary judgment for the defendants. It concluded reasoned that Barbee’s tenure would not have gone into effect until after UCBOE or the director reemployed Barbee for the 2011-12 school year. The court found that neither the minutes from the Board of Education’s April 2011 meeting nor the letter from Cagle indicated that Barbee met the reemployment requirement under Tennessee law. It held that Barbee was not tenured and therefore not entitled to the procedural safeguards in the TTTA.
Ruling/Rationale: The panel’s majority affirmed the district grant of summary judgment in favor of the defendants. It focused its analysis on the TTTA. It pointed out that under state law a tenured teacher “may be dismissed, suspended, or have his contract non-renewed only with cause and after having been given notice, a hearing, and an opportunity for judicial review,” noting those procedural safeguards are not available to non-tenured teachers.
The majority stated that in order for a teacher to obtain tenured status under the TTTA, he must meet three prerequisites. First, the teacher must be among those teachers the director of school recommends to the school board who are eligible for tenure. Second, the school board must “elect,” based on the director’s recommendation, “teachers who have attained or are eligible for tenure and fix the salaries of and make written contracts with the teachers.” The majority stressed that the “election prerequisite” is the exclusive duty of the school board. Third, a teacher must satisfy four tenure-eligibility requirements listed in the TTTA:
(1) Has a degree from an approved four-year college or to any vocational teacher who has the equivalent amount of training established and licensed by the state board of education; (2) Holds a valid professional license based on training covering the subjects or grades taught; (3) Has completed a probationary period of three (3) school years or not less than twenty-seven (27) months within the last five-year period, the last year to be employed as a regular teacher; and (4) Is reemployed by the board for service after the probationary period.
It emphasized that under TTTA it is “the duty of the board of education to assign [employment and nonrenewal duties] to its director of schools.”
The majority stated that the question of whether Barbee was tenured at the time of his nonrenewal required analysis of whether the TTTA’s three prerequisites were met. The parties agreed that first prerequisite had been met, but differed as to whether Barbee had met the second and third perquisites. In regard to Barbee’s argument that the second prerequisite had been met because election occurred, the OCBOE countered that only “provisional election” occurred.
The majority, in agreement with OCBOE, concluded that the school board action at its April 2011 meeting could only be viewed “as a grant of provisional tenure conditioned on Barbee’s later fulfillment of the tenure-eligibility requirement of reemployment.” It based its conclusion on two reasons. First, it characterized Barbee’s argument as an attempt to merge two prerequisites, claiming that “they are synonymous.” The majority determined the argument was not supported by TTTA’s language and structure. It emphasized that under the law the board’s act of “election” is distinct from “reemployment.” It said “reemployment” is best interpreted as renewal of a teacher’s contract, which under the TTTA the director is responsible for, via school board’s assigning the duty to employ teachers to the director. Election, on the other hand, is the exclusive duty of the board. The majority, therefore, concluded: “While the Board of Education did act to provisionally elect Barbee, it had not yet acted (through Director Houston) to reemploy Barbee.”
The majority rejected Barbee’s argument attempting to merge the requirement of reemployment with the prerequisite of election on the ground it “does violence to the statutory scheme.” While acknowledging both are discretionary acts, it emphasized that “reemployment (like completion of the three-year probationary period) is a separate tenure-eligibility requirement.” It, thus, concluded that “the statutory structure instructs that the Board’s act of election for provisional tenure is distinct from the Director of Schools’ responsibility to reemploy the teacher for the following school year.”
Second, the majority found the conclusion that board had only extended provisional tenure was demonstrated by “the similarity in the positions held by” Barbee and OCBOE. Specifically, both agreed that actions taken at the April 2011 board meeting set in motion a sequence of events whereby tenure could later vest upon reemployment. It pointed out that the sole point of contention was over the period of time provisional tenure would last, with Barbee conceding that he was not vesting with tenure during the April 2011 board meeting and instead arguing that he was clothe with tenure when he physically reported for work the day after the meeting.
The majority stated:
Implicit in Barbee’s concession is the recognition that the Board of Education only provisionally granted him tenure, conditioned on his later reemployment. Therefore, the parties only truly disagree on the length of Barbee’s provisional tenure, in other words, on what event constituted reemployment within the meaning of the Act.
The majority found Barbee’s interpretation of what constitutes “reemployment” untenable on two counts. One, the plain meaning of the TTTA belied Barbee’s assertion that his showing up for work the next day “satisfied the tenure-eligibility requirement of reemployment.” It said, “This statutory language clearly contemplates some sort of ‘affirmative action’ by the Board of Education.” It also determined that “the plain meaning of ‘reemployment’ itself does not in any way comport with Barbee’s strained explanation of his two periods of employment.” It noted that Barbee provided nothing in the record detailing the terms of his new employment contract. In addition, the majority found “the plain language of the statute indicates that reemployment need occur ‘after the probationary period.’”
The majority concluded Barbee was not reemployed within the meaning of the TTTA because he “did not receive a new contract for the following school year or report to work as a teacher in the 2011-12 school year.” It cited a number of Tennessee state court decisions in support of its conclusion regarding the TTTA’s reemployment requirement. According to the majority, “[O]n nearly every occasion when a Tennessee state court has had occasion to discuss the Act’s reemployment requirement, it has either explicitly or implicitly indicated that reemployment refers to the school year that follows the three-year probationary period.” In particular, it quoted from the Tennessee Supreme Court’s decision in Coleman v. Acuff, 569 S.W.2d 459 (Tenn. 1978), which held:
[M]ere completion of the final school year of a teacher’s probationary period could not satisfy the tenure-eligibility requirement of reemployment, stating that “a qualified teacher who has finished the statutory probationary requirements does not obtain tenure status until and unless he or she is reemployed by the Board of Education for further service after expiration of the contract during which the probationary period was completed.”
The majority, therefore, held that the plain language of the TTTA and relevant caselaw supported acceptance of UCBOE’s argument that Barbee was not reemployed and, thus, not tenured.
The dissent found that the majority’s conclusion that Barbee satisfied step one of the tenure requirements, but failed step a feat of illogic. It said, “Given this record and the statutory scheme, though, it is quite odd to say that Barbee cleared Step One but failed Step Three when Step One requires a teacher to be eligible for tenure before the director of schools recommends him to the board.” It also took issue with the majority’s conclusion that board could extend provisional tenure to Barbee because the decision to reemploy him rested with the director of schools.
The dissent pointed out that the concept of provisional tenure appears nowhere in the TTTA. It also contended that the “notion of provisional tenure subject to the director’s discretion conflicts with the plain language of the Act and Tennessee case law.” It argued: “To allow the board to approve Barbee for tenure and then have Director Houston override that decision by nonrenewing Barbee’s contract makes the limits on the director’s powers meaningless, and it conflicts with the basic balance of powers between the board and the director embedded in the [TTTA].”
Barbee v. Union City Bd. of Educ., No. 13-5188 (6th Cir. Mar. 17, 2014)
[Editor’s Note: In July 2011, a new teacher tenure law went into effect in Tennessee. The Tennessee School Boards Association has provided an FAQ sheet in order to explain the provisions of the new law and how it differs from the previous teacher tenure law.]