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holding that "a career teacher under [ section] 115C–325 ... ha a cognizable property interest in his continued employment," and is "entitled to a hearing according with principles of due process."
Summary of this case from N.C. Ass'n of Educators, Inc. v. StateOpinion
No. 171A89
Filed 13 June 1990
1. Schools 13.2 (NCI3d) — teacher dismissal — bias by single school board member — violation of due process A single school board member's bias against the teacher at a teacher dismissal hearing taints the entire board's decision-making process and denies the teacher due process regardless of whether the bias affected the correctness of the board's decision.
Am Jur 2d, Schools 192, 193.
2. Appeal and Error 566 (NCI4th) — teacher dismissal — direct review proceeding — law of the case — issue preclusion — inapplicability to bias claim Plaintiff teacher's civil rights claim for damages based on alleged bias of the board of education which dismissed him was not finally decided against him in the direct judicial review of the board's decision to terminate him and the subsequent appeal of that judicial review to the Court of Appeals and was thus not barred by either the law of the case or the doctrine of issue preclusion where the trial court, upon motion by the board, severed plaintiff's two separate claims and conducted its direct judicial review of the board's dismissal decision separately from the trial of the civil rights action; although an assignment of error by plaintiff in the Court of Appeals recited language in the superior court judgment finding that the board's decision was not biased, plaintiff did not raise or argue that specific point before the Court of Appeals; in the direct review proceeding, the parties, superior court and Court of Appeals all focused on the question of whether the board's findings and conclusions in its dismissal decision were supported by substantial evidence in the whole record; no evidence of the type of "concealed" bias, the type of bias leading to the civil rights claim, was in the record made by the board, and plaintiff was given no opportunity to present such evidence on direct judicial review; and the bias claim thus could not have been reached by the superior court in its direct judicial review of the board's action dismissing plaintiff.
Am Jur 2d, Schools 192, 193.
3. Schools 13.2 (NCI3d) — teacher dismissal hearing — property and liberty interests — right to due process A career teacher charged with immorality and insubordination was entitled to a dismissal hearing which complied with principles of due process since the teacher had a cognizable property interest in his continued employment and a constitutionally protected liberty interest was implicated.
Am Jur 2d, Schools 192, 193.
4. Constitutional Law 17 (NCI3d) — civil rights action — concurrent jurisdiction of state and federal courts State courts have concurrent jurisdiction with federal courts over civil rights actions brought under 42 U.S.C. § 1983.
Am Jur 2d, Civil Rights 99, 263-269.
5. Schools 13.2 (NCI3d) — teacher dismissal — bias by one board member — denial of due process If a school board member had made a fixed decision prior to a teacher dismissal hearing to vote against the teacher based on factual information obtained outside the hearing process, that board member was biased against the teacher, and such member's participation in the teacher's dismissal hearing would deny the teacher procedural due process no matter what outcome the board reached at the hearing.
Am Jur 2d, Schools 192, 193.
6. Schools 13.2 (NCI3d) — teacher dismissal — pre-hearing knowledge of allegations not biased School board members with pre-hearing knowledge regarding the allegations against a teacher would neither necessarily nor presumptively be biased against him. However, when performing their quasi-judicial function during a board hearing and any resulting deliberations, school board members must be able to set aside their prior knowledge and preconceptions concerning the matter at issue, and base their considerations solely upon the evidence adduced at the hearing.
Am Jur 2d, Schools 192, 193.
7. Constitutional Law 17 (NCI3d); Schools 13.2 (NCI3d) — teacher dismissal — civil rights action — bias of school board member — sufficient evidence for jury The trial court properly submitted a dismissed teacher's 42 U.S.C. § 1983 claim for damages to the jury for its determination as to whether a school board member had in fact been biased against the teacher in the dismissal proceeding where there was substantial evidence that, at the board's hearing, one or more board members consciously concealed both prior knowledge of the allegations against the teacher and a fixed predisposition against him.
Am Jur 2d, Schools 192, 193.
8. Schools 13.2 (NCI3d) — teacher dismissal hearing — requirement of due process Whether a school board's decision-making process in a teacher dismissal hearing should be termed administrative or quasi-judicial, the board's action involving resolution of disputed facts and selection among alternate sanctions was required to afford the teacher, at a minimum, an unbiased hearing in accord with principles of due process.
Am Jur 2d, Schools 192, 193.
9. Schools 13.2 (NCI3d) — teacher dismissal — bias of school board member — hearing result and spread of bias irrelevant to due process question Neither the result reached at a teacher dismissal hearing nor the spread of one school board member's bias to a sufficient number of other members to have determined the result is determinative on the question of whether the school board's procedure was fundamentally unfair and thus denied the teacher due process, since one board member's fixed bias is sufficient to cause the hearing process to deny due process even though the hearing result itself can be justified.
Am Jur 2d, Schools 192, 193.
10. Constitutional Law 17 (NCI3d); Schools 13.2 (NCI3d) — civil rights action — teacher dismissal — bias by school board member — due process violation — compensatory damages Where the jury in a 1983 civil rights action determined from the evidence at trial that one or more school board members were biased against plaintiff teacher at a dismissal hearing, the jury was justified in returning a verdict finding that the school board's hearing denied plaintiff due process and awarding plaintiff $78,000 in compensatory damages for the due process violation.
Am Jur 2d, Schools 192, 193.
11. Constitutional Law 17 (NCI3d); Schools 13.2 (NCI3d) — dismissed schoolteacher — injury from due process violation — damages In order for a dismissed schoolteacher to recover more than nominal damages on his 1983 due process claim, the teacher must have been injured by the due process violation itself, and not merely by distress caused by a deprivation of his constitutionally protected interest in his job.
Am Jur 2d, Schools 192, 193.
12. Judgments 3 (NCI3d) — conformity to pleadings and verdict Where plaintiff sought compensatory damages only from defendant board of education and only punitive damages from the individual defendants, and the jury returned its verdict awarding only compensatory damages, the trial court's judgment should have ordered that the damages and costs be recovered from defendant board and not from the other defendants individually.
Am Jur 2d, Pleadings 382, 383; Schools 211.
APPEAL by the defendants pursuant to N.C.G.S. 7A-30 (2) from the decision of a divided panel of the Court of Appeals, 93 N.C. App. 168, 378 S.E.2d 32 (1989), affirming a judgment entered by Sitton, J., on 19 November 1987 in Superior Court, CATAWBA County. Heard in the Supreme Court on 11 December 1989.
Ferguson, Stein, Watt, Wallas, Adkins Gresham, P.A., by John W. Gresham, for the plaintiff-appellee.
Mitchell, Blackwell, Mitchell Smith, P.A., by Thomas G. Smith, and Sigmon, Clark and Mackie, P.A., by E. Fielding Clark II, for the defendant-appellants.
George T. Rogister, Jr. and Jonathan A. Blumberg for the North Carolina School Boards Association, amicus curiae.
Justice MEYER dissenting.
Justice MARTIN dissenting.
Justice WHICHARD dissenting.
The issue before us is whether, at a teacher dismissal hearing, a single school board member's bias against the teacher taints the entire board's decision-making process, denying the teacher due process and entitling him to compensatory damages, regardless of whether the bias affected the correctness of the board's decision. We conclude that such bias makes the decision-making process inherently unfair and violates due process.
The facts relevant to the issue presented include the following: On 7 June 1984, the defendant-appellants, the Hickory Board of Education and its individual members, dismissed the plaintiff-appellee, Eddie Ray Crump, from his teaching position at Hickory High School based on findings of immorality and insubordination. Following his dismissal, Crump filed a joint petition and complaint with the Superior Court. His petition pursuant to N.C.G.S. 115C-325 for direct judicial review of the Board's action dismissing him alleged that the evidence introduced at the Board's hearing was insufficient to support its findings. His complaint initiating this separate civil action under 42 U.S.C. § 1983 alleged that the defendants had acted with bias against him, in violation of his due process rights under the state and federal constitutions, as well as in violation of the statutory protections codified at N.C.G.S. 115C-325. Crump sought damages in this civil action under 42 U.S.C. § 1983, including compensatory damages from the Board and punitive damages from its individual members.
Upon the defendants' motion, the trial court severed the two separate claims brought by Crump, and conducted its direct judicial review of the Board's decision to dismiss him separately from the trial of this civil action. Thereafter, on direct review of the Board's action, the superior court upheld the Board's decision to dismiss Crump. Crump appealed that decision to the Court of Appeals, which affirmed the superior court in Crump v. Board of Education, 79 N.C. App. 372, 339 S.E.2d 483, disc. rev. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). Thus, the Board's decision to dismiss Crump has been made final and is not before us on this appeal. This appeal only presents questions of procedural fairness during the School Board's hearing, which were raised by Crump in this separate civil action seeking damages as a result of the Board's alleged bias and the resulting denial of due process at the Board's hearing. In support of his 1983 action, Crump alleged this denial of due process by the Board caused him injury separate and distinct from his mere dismissal.
The separate civil action presenting Crump's due process claim, the sole subject of this appeal, was tried before a jury at the 16 November 1987 session of Superior Court, Catawba County. Crump based his claim of bias and resulting denial of due process on evidence at trial tending to show disparities between the actual pre-hearing knowledge of and involvement with Crump's situation by certain Board members, and their disavowals of knowledge of the matter when asked about it at the Board's hearing.
At the Board's dismissal hearing, Crump's attorney, James Fuller, questioned Board members about their ability to be fair and impartial:
Mr. Fuller: . . . I want to be perfectly blunt about it and ask the Board . . . the extent to which any of you have been personally involved, have discussed with people who have knowledge and whether any of you have formed any kind of preconceived notions. I don't mean that in a pejorative sense but just as matter of being brutally candid. Has anybody on the Board either because of the publicity, because of what you have heard from [the] administration, from friends, neighbors, from anyone else, whether you have any problem at all being completely fair to Mr. Crump? And again, I don't mean fair in the sense of you will try to be fair, but can you honestly say the scales are even now . . . .
Mr. Pitts: That's a fair question. I am glad you addressed that right up front because several months ago the Board was aware that some form of hearing was coming down the pike. The administration, the attorney, has not ever revealed anything until we received this letter in the mail yesterday hand delivered of any charges or any statements. Now I can speak for myself. But the attorney has asked all members of the Board not to discuss any aspect of anything that they may hear. If someone calls them on the phone, they are not to respond in any way. I can speak for myself to say that for me at this point in time the slate is clear.
Ms. Newton: The same thing. In fact we have not even been given a name whenever we were told a hearing was coming up. And I have not been approached by anybody. And if mention was made of it, I just said I know nothing. And whatever judgment would be made has to be done on what we hear tonight.
Mr. Isenhour: The same.
Ms. Garlitz: The same. I have had people that made statements to me, and I have not responded in any way. And I did not know until the letter came yesterday what this was about.
Mr. Watts: Frankly, I feel that I can be as objective as anybody on this Board. Obviously when a newspaper that is published on a county-wide basis comes out and indicates that a teacher is being brought up for charges, I read the article because I'm on the School Board and the teacher happens to be in my system. Other than that, there has been no preliminary information except for this notice we got yesterday afternoon late in the afternoon with the charges. I think I have a fairly good grasp of what we're here for and hopefully will be able to give every bit of the evidence full weight.
Ms. Young: I had one call, and I said, "I have no comments." And I have not said one word anywhere. And when I go, I listen and I vote my convictions.
Subsequent evidence suggested, however, that not all of the Board members had been entirely candid in their answers. During Principal Williamson's testimony at the Board's hearing, Board member Isenhour asked him, "[a]re you aware of the fact that we had parents who will not let their daughters take driver's education because of this situation, that they're sending their daughters to the private school?" At the later trial of this civil action, however, Isenhour acknowledged that no evidence before the Board during its hearing tended to show that female students at Hickory High School were taking driver's education elsewhere for any reason.
Hal Bolick, a teacher at Hickory High School, testified at trial that several months before the Board's hearing, Board Chairman Pitts told him that the Board could not "overlook" the "letters about [Crump's conduct with] the little girls." Bolick further testified regarding conversations with Board member John Watts prior to the Board's dismissal hearing. Bolick testified that he had "advised" Watts of pre-hearing conversations regarding Crump between Bolick and one of the students who later testified against Crump at the hearing. Bolick also testified that, after the hearing, Watts told Bolick "that things that had gone on in the [hearing] room itself didn't seem like the Board members were listening, that they seemed to have made up their minds before they went in." Board member Watts testified at trial, however, that he did not recall making such a statement to Bolick.
Roger Henry, a former teacher, testified that in March 1984, prior to the Board's hearing, Board member Watts told him that the charges against Crump "didn't look good, that they were concerned, and mentioned [Board member] Garlitz and [Chairman] Pitts and [that Crump] . . . needed to resign [and would Henry] do anything about it." When asked at trial whether he denied that the conversation with Henry had occurred, Watts answered, "I won't deny it or confirm it, sir."
Bruce Crump (no relation to the plaintiff-appellee), another former teacher, testified that in the spring of 1984, prior to the Board's hearing, he witnessed Board member Lois Young tell Principal Williamson, "We're all together on this Crump thing." Bruce Crump also testified that no matters involving him were pending with the Board at the time he heard Young make the statement about the "Crump thing." Neither Young nor Williamson testified at trial.
The plaintiff-appellee Eddie Crump testified that he had a conversation with Board member Young after his dismissal. Crump testified that during their conversation, Young told him that prior to the Board's hearing Principal Williamson had promised the Board members that Crump would resign rather than endure a dismissal hearing and thus bring embarrassment upon his wife.
The jury found that the Board had failed to "provide [Crump] a fair hearing before an unbiased hearing body," and that Crump had suffered resulting actual damages of $78,000, but awarded no punitive damages. The trial court entered judgment accordingly. A divided panel of the Court of Appeals affirmed the trial court's judgment.
I.
As a preliminary matter, we address one point raised by the dissents in this case. Although using differing terminology, the dissents argue that Crump's bias claim was previously and finally decided against him in the direct judicial review of the Board's decision to terminate him and the subsequent appeal of that judicial review to the Court of Appeals. See Crump v. Board of Education, 79 N.C. App. 372, 339 S.E.2d 483, disc. rev. denied, 317 N.C. 333, 346 S.E.2d 137. Thus, the dissents argue that Crump's bias claim in this case is barred by either the law of the case or the doctrine of issue preclusion. We disagree.
In response to Crump's amended complaint, the Board moved to separate the superior court's proceeding on direct judicial review of the Board's decision from Crump's 42 U.S.C. § 1983 civil claim. Alternately, the Board moved under N.C.G.S. 1A-1, Rule 12 (c) to dismiss the 1983 suit, arguing that all claims raised in Crump's amended complaint were within the scope of the direct judicial review of the Board's decision. Although the records in these cases are not clear regarding when the motion to sever was granted, the Board, in its brief to the Court of Appeals during the appeal of the superior court's direct judicial review of the Board's decision, argued that "[t]he two claims are clearly divisible and defendants in this [direct review] action have moved to sever these actions. The trial court has not ruled on the motion to sever, but the case has proceeded as if the matters involved were in separate lawsuits." (Emphasis added.)
In Judge Sitton's judgment in the direct judicial review proceeding, he plainly stated that
The court has reviewed the entire record made before the Board and has applied the `whole record test' in reviewing the evidence to determine whether the Board's decision is supported by substantial, material, and competent evidence. . . .
After a thorough and careful review of the transcript, exhibits, briefs, and arguments of counsel, the court finds and concludes that the Board's findings, inferences, and conclusions; underlying its decision to dismiss Mr. Crump, and the Board's decision to terminate and dismiss Eddie Ray Crump, are supported by competent, material, and substantial evidence in view of the entire record as submitted . . . .
The court further finds and concludes that the action [of] the Board to dismiss Crump was not biased, arbitrary or capricious; . . . but instead was based on substantial evidence viewing the record as a whole.
(Emphasis added.)
Crump appealed that judgment to the Court of Appeals, assigning as error that the superior court's findings and conclusions were not supported by substantial evidence in the whole record. Although Crump's recitation of the judgment's wording in his first assignment of error in that appeal included the superior court's finding that the Board's decision was not biased, Crump did not seek to raise or argue that specific point before the Court of Appeals. Instead, the parties and the Court of Appeals all focused on the same question which had been before the superior court in the direct review proceeding, after that proceeding had been separated from the 1983 action: whether the Board's decision to dismiss Crump was "supported by competent, material, and substantial evidence in view of the entire record as submitted." (Emphasis added.) Evidence of one or more Board members' bias during the Board's hearing was not evident in the record made before the Board, because the Board members had concealed such bias when questioned by Crump's attorney. Further, Crump was afforded no opportunity during the direct judicial review proceeding to present evidence of bias. Thus, the superior court could not have evaluated, "in view of the entire record made before the Board," any Board member's concealed bias.
The only "bias" the superior court could have searched for during its direct review of the Board's action was that which might have facially appeared in the record if the evidence before the Board had not supported its findings of improper conduct by Crump. No evidence of the type of bias leading to Crump's 1983 action was in the record made by the Board, and Crump was given no opportunity to present such evidence on direct judicial review. Thus, his 1983 bias claim could not have been reached by the superior court on its direct judicial review of the Board's action dismissing him. Our conclusion is buttressed by the fact that the same superior court judge who conducted the direct judicial review of the Board's decision to dismiss Crump also presided over the trial of this separate action arising from Crump's 1983 claim. Judge Sitton obviously knew that, due to his severance of the plaintiff's claims at the defendants' request, the allegations of bias supporting the 1983 claim had not been before him or decided by him when he had conducted the prior direct judicial review proceeding.
As a final point on this topic, we do agree with Justice Martin, to the extent that he says in his dissent that "[i]n any event where justice and right are concerned, this Court has never allowed manifest injustice to prevail based upon some procedural technicality in a trial or appeal." (Citation omitted.) We will not allow any such result in this case. The Board argued in the appeal of the superior court's direct judicial review proceeding that the direct review proceeding and Crump's 1983 civil claim were "clearly divisible" and that all concerned had treated them separately. Yet, in its argument to the Court of Appeals in this case, the Board argued, as the dissents now contend, that the direct judicial review proceeding resolved the sole issue underlying this 1983 action. What the Board used as a sword to sever the two actions cannot now be used by it as a procedural shield from potential liability. Crump's separate civil action under 1983 is not barred by either the law of the case or the doctrine of issue preclusion.
II.
The Court of Appeals concluded that in this separate civil action under 1983, the trial court "correctly instructed the jury that the bias of one member of the Board was sufficient for the jury to find that Mr. Crump had been deprived of a fair hearing." Crump v. Board of Education, 93 N.C. App. 168, 185, 378 S.E.2d 32, 34 (1989) (emphasis added). For the reasons discussed below, we too find no error in the trial court's instructions and affirm the decision of the Court of Appeals. We begin our analysis with some foundational concepts concerning due process, bias, and school boards.
A. Due Process
Whenever a government tribunal, be it a court of law or a school board, considers a case in which it may deprive a person of life, liberty or property, it is fundamental to the concept of due process that the deliberative body give that person's case fair and open-minded consideration. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchinson, 349 U.S. 133, 136, 99 L.Ed. 942, 946 (1955). As a career teacher under N.C.G.S. 115C-325, Crump had a cognizable property interest in his continued employment. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 576-78, 33 L.Ed.2d 548, 560-61 (1972). Further, Crump's constitutionally-protected liberty interest was implicated, since the
charge impair[ed] his reputation for honesty or morality. The procedural protections of due process apply if the accuracy of the charge is contested, there is some public disclosure of the charge, and it is made in connection with the termination of employment or the alteration of some right or status recognized by state law.
Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 777-78 (9th Cir. 1982) (Kennedy, J.) (footnotes omitted); see Board of Regents v. Roth, 408 U.S. at 572, 33 L.Ed.2d at 558. With his fundamental rights so implicated, Crump was entitled to a hearing according with principles of due process. "[A] Board of Education conducting a [dismissal] hearing under G.S. 115-142 [now 115C-325] must provide all essential elements of due process." Baxter v. Poe, 42 N.C. App. 404, 409, 257 S.E.2d 71, 74, disc. rev. denied, 298 N.C. 293, 259 S.E.2d 298 (1979).
Crump brought his due process claim under 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
While this statute has been the subject of many federal opinions and scholarly articles, North Carolina appellate courts have addressed the statute only infrequently. It is clear, however, that 1983 works to create "`a species of tort liability' in favor of persons who are deprived of `rights, privileges, or immunities secured' to them by the Constitution." Carey v. Piphus, 435 U.S. 247, 253, 55 L.Ed.2d 252, 258 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 47 L.Ed.2d 128, 136 (1976), and 42 U.S.C. § 1983 (1982)). State courts have concurrent jurisdiction with federal courts over 1983 actions. See Williams v. Greene, 36 N.C. App. 80, 243 S.E.2d 156, disc. rev. denied and appeal dismissed, 295 N.C. 471, 246 S.E.2d 12 (1978).
We recognize that due process is a somewhat fluid concept, and that determining what process is "due" at a school board hearing is very different from evaluating the procedural protections required in a court of law. "Determining what process is due in a given setting requires the Court to take into account the individual's stake in the decision at issue as well as the State's interest in a particular procedure for making it." Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 494, 49 L.Ed.2d 1, 10 (1976) (citing cases).
B. Bias
An unbiased, impartial decision-maker is essential to due process. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 271, 25 L.Ed.2d 287, 301 (1970) (citing cases); Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 779 (9th Cir. 1982); Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). As discussed below, this case turns on the question of what evidence will suffice to support a jury's determination, as here, that a decision-maker is biased, when the decision-maker is a group of persons.
While the word "bias" has many connotations in general usage, the word has few specific denotations in legal terminology. Bias has been defined as "a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction," Black's Law Dictionary 147 (5th ed. 1979), or as "a sort of emotion constituting untrustworthy partiality," 10 C.J.S. Bias (1955 Supp. 1989) (footnote omitted). "Some sort of commitment is necessary for disqualification [due to bias], even though it is less than an irrevocable one." 3 Davis, Administrative Law Treatise 2d 19:4 at 385 (1980). Bias can refer to preconceptions about facts, policy or law; a person, group or object; or a personal interest in the outcome of some determination. See id. ch. 19. Crump's complaint commencing the civil action now before us on appeal alleged that one or more Board members came into his hearing having already decided to vote against him, based on "factual" information obtained outside the hearing process. This type bias can be labeled a "prejudgment of adjudicative facts." Id. 19:4.
The trial court in this case gave the jury a lengthy explanation of the heavy burden a plaintiff must bear to succeed in proving that a school board acted towards him or her with bias. The trial court began by explaining the presumption of correctness afforded school board actions, then instructed the jury that:
To prove impermissible bias of the hearing body the plaintiff must show or prove by its greater weight more than the fact that a board member or members had some knowledge of some fact or facts concerning a charge or charges against a teacher. Mere familiarity with a fact or facts or charge or charges does not automatically disqualify a board member as a decision maker.
. . . .
I instruct you that a board member's obligation is to be able to put aside anything read or heard prior to a hearing and base a decision solely upon the sworn testimony and evidence during a hearing.
To find impermissible bias you, the jury, must find by the greater weight of the evidence that the mind of a board member was predetermined and was fixed and not susceptible to change prior to the deliberating process of the hearing board, and that the decision was not based solely upon evidence during the hearing.
The quoted instructions given by the trial court concerning decision-maker bias were free of error. If a Board member had made a fixed decision, prior to the Board's hearing, to vote against Crump, that member was biased against him. One such Board member's participation in Crump's dismissal hearing would cause that hearing to deny Crump procedural due process, no matter what outcome the Board reached at the hearing.
C. School Boards
Distinguishing a Board member's disqualifying bias against Crump from permissible pre-hearing knowledge about Crump's case is essential to our analysis. Members of a school board are expected to be knowledgeable about school-related activities in their district. Board members will sometimes have discussed certain issues that later become the subject of board deliberations; such knowledge and discussions are inevitable aspects of their multi-faceted roles as administrators, investigators and adjudicators. However, when performing their quasi-judicial function during a board hearing and any resulting deliberations, members must be able to set aside their prior knowledge and preconceptions concerning the matter at issue, and base their considerations solely upon the evidence adduced at the hearing. In an analogous case before the United States Court of Appeals for the Ninth Circuit, Judge (now Justice) Anthony Kennedy wrote:
The key component of due process, when a decisionmaker is acquainted with the facts, is the assurance of a central fairness at the hearing. . . .
. . . .
. . . Members of a school board in smaller communities may well have some knowledge of the facts and individuals involved in incidents which they must evaluate. Their obligation is to act impartially and in a fair manner.
Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 779-80 (9th Cir. 1982) (citations omitted).
In the present case, a Board member with pre-hearing knowledge regarding the allegations against Crump would neither necessarily nor presumptively be biased against him. "The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing." Withrow v. Larkin, 421 U.S. 35, 55, 43 L.Ed.2d 712, 728 (1975), quoted in 3 Davis, Administrative Law Treatise 2d 19:4 at 384 (1980). Indeed, because of their multi-faceted roles as administrators, investigators and adjudicators, school boards are vested with a presumption that their actions are correct, and the burden is on a contestant to prove otherwise. N.C.G.S. 115C-44 (1987); see Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 497, 49 L.Ed.2d 1, 11-12 (1976). The trial court correctly informed the jury of these concepts by instructing that:
The North Carolina legislature has empowered local school boards to hear and decide teacher dismissal cases in this state. There is no other hearing panel designated in the law of North Carolina to hear teacher dismissal cases. The court instructs you that the law presumes that the school board members act with honesty and integrity. The law further presumes that actions taken by a school board of education [are] legally correct and that a board acts fairly, impartially and in good faith. The burden is on the plaintiff to overcome this presumption by proving by the greater weight of the evidence that the board was impermissibly biased in dismissing the plaintiff.
III.
If the Board in this case was biased, it was unable to provide Crump with the fair and open-minded consideration that due process demanded his case receive. "A public employee facing an administrative hearing is entitled to an impartial decision maker. . . . To make out a due process claim based on this theory, an employee must show that the decision-making board or individual possesses a disqualifying personal bias." Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (citing Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 49 L.Ed.2d 1 (1976), and Salisbury v. Housing Authority of City of Newport, 615 F. Supp. 1433, 1439-41 (E.D.Ky. 1985)), cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). Here, there was substantial evidence that, at the Board's hearing, one or more Board members consciously concealed both prior knowledge of the allegations against Crump and a fixed predisposition against him. Such evidence having been presented, the trial court properly submitted this case to the jury for its determination as to whether a Board member had in fact been biased against Crump.
A. One Member Bias
The decision of our Court of Appeals is in accord with the view of the United States Court of Appeals for the Third Circuit, which has stated that "[l]itigants are entitled to an impartial tribunal whether it consists of one [person] or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured." Berkshire Employees Ass'n, Etc. v. National Labor R. Bd., 121 F.2d 235, 239 (3d Cir. 1941), quoted in Crump v. Board of Education, 93 N.C. App. 168, 185, 378 S.E.2d 32, 42 (1989). Berkshire involved an allegation by a knitting mill's employees' association that one member of the National Labor Relations Board had "endeavor[ed] to assist in a boycott on Berkshire's goods. This was at a time before he was called upon, in his capacity as a Board member, to pass upon the questions concerning unfair labor practices by Berkshire." Berkshire, 121 F.2d at 238-39. The court in Berkshire was addressing a situation analogous to the case at bar. We agree with that court's observations that:
It is perfectly clear that the exercise of its duties by an administrative body must necessarily proceed in a different fashion from the orthodox method of administering justice in courts. This administrative body must at times be successively or simultaneously investigator, complainant, prosecutor, trier of facts, declarer of law and administrator, all in the same matter. . . . The [courts] must be exceedingly careful not to jump to hasty conclusions that because the administrative process differs in many ways from the judicial process it lacks due process of law.
Nevertheless, if the administration of public affairs by administrative tribunals is to find its place within the present framework of our government it is essential that it proceed, on what may be termed its judicial side, without too violent a departure from what many generations of English-speaking people have come to regard as essential to fair play. One of these essentials is the resolution of contested questions by an impartial and disinterested tribunal. These adjectives are not absolute but relative as every thoughtful person knows. Decisions affecting human beings, made by human beings, necessarily are colored by the sum total of the thoughts and emotions of those responsible for the decision. The judicial process, or any other human process, cannot operate in a vacuum. The most we can hope for is that persons charged with responsibility for decisions affecting other people's lives and property will be as objective as humanly possible. . . . If the circumstances alleged are proved [then the plaintiff] did not have a hearing before an impartial tribunal, but one in which one member of the body which made exceedingly important findings of fact had already thrown his weight on the other side. . . .
The Board argues that at worst the evidence only shows that one member of the body making the adjudication was not in a position to judge impartially. We deem this answer insufficient. Litigants are entitled to an impartial tribunal whether it consists of one [person] or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.
Id.
A critical component of any quasi-judicial hearing and decision-making by a deliberative body is the give and take which occurs when group members share their observations and opinions. There is a fundamental notion that each member will enter the hearing with an open mind, listen to and view the evidence, share his or her observations, analyses and opinions with the other board members, listen to the other members' comments, and only then finally commit to a vote. One biased member can skew the entire process by what he or she does, or does not do, during the hearing and deliberations. Since the Board's deliberations giving rise to this case were closed and unrecorded, there is no meaningful way to accurately review the process to determine the impact of any bias by one or more members during the hearing and deliberations.
B. The Accardi Decisions
One author has suggested that in its Accardi decisions, the Supreme Court of the United States has implicitly rejected a "one member bias" rule. 3 Davis, Administrative Law Treatise 2d 19:4 at 387-88 (1980) (citing Accardi v. Shaughnessy, 347 U.S. 260, 98 L.Ed.2d 681 (1954) (Accardi I), and its appeal on remand, Shaughnessy v. Accardi, 349 U.S. 280, 99 L.Ed.2d 1074 (1955) (Accardi II)). We disagree with this interpretation of the Accardi decisions.
In Accardi II, an immigrant facing deportation alleged that the Board of Immigration Appeals had refused to suspend his deportation because the Board's decision was controlled by the Attorney General. Accardi II, 349 U.S at 281, 99 L.Ed. at 1076. The members of the Board were appointed by the Attorney General and served at his pleasure. Accardi I, 347 U.S. at 266, 98 L.Ed. at 686. Accardi claimed that the Attorney General had provided Board members with a list naming him as among several "unsavory characters" whom the Attorney General sought to deport. Accardi II, 349 U.S. at 281, 99 L.Ed. at 1076.
The Supreme Court, reversing a divided United States Court of Appeals for the Second Circuit, upheld the Board's decision. Noting that Accardi was a target of the Attorney General's deportation program — but that there was no such list of unsavory characters — the Supreme Court concluded that the evidence only showed that, at most, two members of the five-member Board knew that the Attorney General was targeting Accardi for deportation. Id. at 283, 99 L.Ed. at 1077. Although not discussed by the Supreme Court, we note that one or more Board member's mere knowledge that Accardi was being targeted for deportation would not rise to the level of bias depriving Accardi of a fair hearing, as we have discussed previously. In Accardi II the Supreme Court noted, in reviewing the Second Circuit's decision, that "[t]he opinion of the [Court of Appeals] recognized that, before Accardi was entitled to another Board hearing, he had to prove that a majority of the Board not only knew of the `list' but were affected by it." Id. at 282, 99 L.Ed. at 1077. The Supreme Court then went on to point out an unrelated error in the lower court's ruling, without either analyzing or approving the quoted language. We do not infer disapproval of the "one member bias" rule, which we conclude was properly applied in this case, based on that one sentence quotation from the Supreme Court's opinion. Since the evidence in Accardi II only tended to show mere knowledge on the part of one or more Board members, there was no evidence of actual bias by any Board member, and the Supreme Court was not called upon to evaluate a "one member bias" rule.
C. Administrative and Judicial Distinctions
There is some disagreement as to whether a school board's decision-making process in dismissing a teacher should be considered an "administrative" or a "judicial" function. Several courts, including the Supreme Court of the United States and our own Court of Appeals, have tended to indicate that school board decisions dismissing teachers for various actions may be administrative rather than judicial in nature. Our Court of Appeals has stated that:
The procedures prescribed by G.S. 115-142 [now 115C-325] for the dismissal of a career teacher are essentially administrative rather than judicial. . . . [T]he Board is not bound by the formal rules of evidence which would ordinarily obtain in a proceeding in a trial court. Nor are the Rules of Civil Procedure applicable. G.S. 1A-1. While a Board of Education conducting a hearing under G.S. 115-142 [now 115C-325] must provide all essential elements of due process, it is permitted to operate under a more relaxed set of rules than is a court of law. Boards of Education, normally composed in large part of non-lawyers, are vested with "general control and supervision of all matters pertaining to the public schools in their respective administrative units," G.S. 115-35 (b) [now 115C-36], a responsibility differing greatly from that of a court. The carrying out of such a responsibility requires a wider latitude in procedure and in the reception of evidence than is allowed a court.
Baxter v. Poe, 42 N.C. App. 404, 409, 257 S.E.2d 71, 74-75, disc. rev. denied, 298 N.C. 293, 259 S.E.2d 298 (1979); see Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 495, 49 L.Ed.2d 1, 11 (1976). We note, however, that the language quoted from our Court of Appeals in its Baxter decision addressed due process considerations relating to evidentiary issues not present in this case but, nevertheless, recognized that board of education hearings concerning dismissal of career teachers must meet the fundamental requirement of due process. Baxter, 42 N.C. App. at 409-410, 257 S.E.2d at 74-75.
On the other hand, there are decisions imposing greater judicial scrutiny upon administrative or quasi-judicial deliberative bodies.
[A] fair trial by an unbiased and non-partisan trier of the facts is of the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge. Indeed, if there is any difference, the rigidity of the requirement that the trier be impartial and unconcerned in the result applies more strictly to an administrative adjudication where many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed.
National Labor Relations Board v. Phelps, 136 F.2d 562, 563 (5th Cir. 1943) (footnote omitted), cited in Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir. 1984).
We conclude that, whether termed administrative or quasi-judicial, the Board action in this case, involving resolution of disputed facts and selection among alternate sanctions, was required to afford Crump, at a minimum, an unbiased hearing in accord with principles of due process.
IV.
This case on appeal is made more difficult because the outcome of the Board's hearing — Crump's dismissal — was upheld in a separate proceeding before the superior court and Court of Appeals in which Crump challenged the Board's action on the ground that the evidence at the Board's hearing did not support its findings. Crump v. Board of Education, 79 N.C. App. 372, 339 S.E.2d 483, disc. rev. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). Therefore, the issue of whether the Board's findings and conclusions supported its decision to dismiss Crump is not before us; his dismissal is final, and may not be reviewed as a part of this appeal. Instead, we review in this appeal only Crump's separate civil action seeking money damages under 42 U.S.C. § 1983 for injury arising from a violation of his due process rights, resulting from his being forced to endure an unfair hearing process, no matter what the outcome of the Board's hearing.
A. The Outcome of the Board Hearing
The appellants, the amicus, and one dissent in this Court each make the fundamental error of assuming that the finality of the Board's decision to dismiss Crump is determinative on the question of whether the hearing process itself was fundamentally unfair and resulted in injury to him. The appellants argue that the trial court's instructions in this separate 1983 civil action, affirmed by the Court of Appeals, created a conclusive presumption that one Board member's bias spread to a sufficient number of other members to have determined the result against Crump. That characterization is incorrect in that it focuses on the result reached at the hearing, which is not determinative on the question of whether the Board's procedure was unfair and, thus, denied Crump due process. Likewise, whether one member's bias spread is not determinative; one Board member's fixed bias is sufficient to cause the hearing process to deny due process, even though the hearing result itself can be justified.
Here, damages were assessed solely for the due process violation and resulting injury arising from Crump being forced to endure a hearing before a deliberative body which a Catawba County jury found had contained one or more members who had already decided the case against him. Damages were not assessed for the removal of Crump from his job. The purpose of 42 U.S.C. § 1983 would be defeated if a defendant could raise as a bar to recovery the fact that, regardless of a due process deprivation, the outcome of the process in which the due process deprivation occurred was nonetheless justifiable. Such reasoning smacks of the end justifying the means. No matter how many valid reasons the Board may have uncovered for dismissing Crump, the Board was obligated to provide him a fair hearing. A Catawba County jury determined from the evidence at trial that one or more Board members were biased against Crump at the hearing. The jury was thus justified in returning the verdict it in fact returned, finding that the Board's hearing denied Crump due process and awarding damages accordingly.
B. The Remedy Now Sought
The defendants also argue that Crump's relief, if any, must be limited to a remand of this case for a determination of whether a member of the Board was disqualified because of bias, and, if so, for a new hearing by Board members not so disqualified. The defendants and one dissent in this Court seem to think that an incorrect dismissal of Crump was the only possible harm that could have flowed to him from the due process violation found by the jury to have occurred. That view ignores the very real injury to both Crump and our society from allowing him to be forced to defend himself in a hearing which denied him due process, whether he was guilty of the allegations against him or not. "It is fundamental that both unfairness and the appearance of unfairness should be avoided." American Cyanamid Company v. F.T.C., 363 F.2d 757, 767 (6th Cir. 1966); see State v. Mettrick, 305 N.C. 383, 385, 289 S.E.2d 354, 356 (1982). Damages awardable under a 42 U.S.C. § 1983 action include mental and emotional distress caused by the due process violation itself. Carey v. Piphus, 435 U.S. 247, 262-64, 55 L.Ed.2d 252, 264-65 (1978), cited in Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 781 (9th Cir. 1982).
The defendants and amicus correctly note that in order to recover more than nominal damages on his 1983 due process claim, Crump must have been injured by the due process violation itself, and not merely by distress caused by a deprivation of his constitutionally-protected interest in his job. See, e.g., Carey v. Piphus, 435 U.S. at 263-64, 55 L.Ed.2d at 264-65; Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 353, 342 S.E.2d 914, 924, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). Crump's complaint in this 1983 civil action — heard separately from the direct review of his dismissal, as a result of the defendants' successful effort to separate the two actions — alleged injury only from the Board's action subjecting him to a hearing where he was denied due process; he did not seek damages for the Board's action in dismissing him. The evidence of damages in this case was correctly limited by the trial court to evidence tending to show the suffering Crump sustained as a result of the denial of due process at the hearing. The jury was not allowed to consider whether the Board was justified in dismissing Crump; the defendants' earlier successful effort to sever had removed that issue from this case. The jury did know, at the defendant Board's request, that Crump had been dismissed and that the dismissal had been upheld. Having established injury arising from the due process violation itself to a Catawba County jury's satisfaction, Crump was entitled to a verdict in his favor.
V.
Bias is hard to prove. Given the level of pre-commitment by a board member that must be shown to make out a case of bias and a resulting denial of due process, we doubt that our decision in this case will open any floodgates of litigation or unduly prevent boards of education from dismissing bad teachers. Determining what procedure is required by principles of due process in a given situation requires that the cost of the procedure be evaluated in light of the potential harm flowing from that procedure. In this case, the cost of the procedure which we conclude due process required was whatever it would have taken for one or more Board members to candidly answer Crump's questions about their prehearing knowledge. The injury to Crump from being forced to participate in a hearing that the jury in this case determined was unfair, on the other hand, was valued by the Catawba County jury at $78,000. It should not cost that much to be candid; talk is cheap.
The Court of Appeals affirmed the judgment of the trial court awarding Crump $78,000 in compensatory damages. We note, however, that the trial court's judgment in this case indicated that those damages were to be recovered from the "defendants," but indicated that the "defendant" was to pay the costs. By his complaint, the plaintiff sought compensatory damages only from the defendant Board, and not from the individual defendants. The plaintiff sought only punitive damages from the individual defendants. The jury having returned its verdict awarding only compensatory damages, but no punitive damages, the trial court's judgment should have ordered that the damages and costs be recovered only from the defendant Board and not from the other defendants individually. This case is remanded to the Court of Appeals for its further remand to the Superior Court, Catawba County, with instructions that the judgment be modified and amended accordingly. Except as modified in this regard, the decision of the Court of Appeals affirming the judgment of the trial court is affirmed.
Modified and affirmed; remanded with instructions.