LATCHUM, Chief Judge.
The plaintiff, Bessie M. Lewis, instituted this action
FINDINGS OF FACT
A hearing was held on the motion on July 6, 1978 at which time the parties produced the testimony of witnesses and introduced documentary evidence.
The plaintiff was first employed by the College in September, 1969, as an Assistant Director of Laws Hall, one of three college dormitories for women.
Under the personnel policies and practices of the College, the plaintiff's position as Director was classified as part of the non-academic professional staff.
Thus, despite the fact that professional staff members serve under annual contracts, the College personnel policy quoted above implicitly creates for the employee an expectancy of contract renewal if the employee receives a satisfactory job evaluation report for the current year and the job, if supported by grants, continues to be funded and is not otherwise abolished.
Plaintiff, a single woman, first learned that she was pregnant in August, 1977, at which time she consulted her physician.
The pregnancy resulted from a private and intimate relationship which began in August, 1976, between the plaintiff and Charles E. Henderson, Jr., the assistant football coach and assistant director of the student center at the College.
On February 1, 1978, plaintiff wrote to Dr. William R. Wynder, her immediate superior and Vice-President for Student Affairs, requesting a maternity leave from March 1 until June 16, 1978.
On February 28, 1978, Dr. Wynder completed an evaluation report of plaintiff's current performance, found her performance as Director to be satisfactory, recommended that she be retained for another year of employment and considered her eligible for a normal annual salary adjustment.
Believing her contract was assured for another year, plaintiff commenced her 75-day maternity leave on March 1, 1978.
As a consequence of these meetings, plaintiff's contract as Director of Residence Halls for Women was not renewed but she was offered and accepted under protest a contract for a newly created position as a Financial Aid Counselor at a salary $5,867.00 less than she would have earned as Director for the 1978-79 school year.
Dr. Mishoe testified that one of the reasons the plaintiff was not rehired as Director was because she failed to satisfy the requirement set forth in her job description that she be "of good moral character."
However, the evidence clearly indicates that the plaintiff did not believe that having a child out of wedlock could be considered cause for terminating her as Director.
Dr. Mishoe testified repeatedly that the sole reason
Finally, the Court finds that the conduct of the defendants in this case constituted state action within the meaning of the Fourteenth Amendment. Delaware State College is a creature of the Delaware General Assembly having been established in 1891 under the Morrill Act of 1890.
CONCLUSIONS OF LAW
A party seeking a preliminary injunction must make a clear showing that the balance of the following four factors favors granting the temporary relief sought: (1) the likelihood that the movant will prevail on the merits, (2) the likelihood that, in the absence of a preliminary injunction, the movant will suffer irreparable harm, (3) the harm to other parties interested in the proceedings that may result from a grant of injunctive relief, and (4) the public interest. See A. O. Smith v. FTC, 530 F.2d 515, 525 (C.A.3, 1976). The Court now turns to an evaluation of these factors in the circumstances of this case.
I. The Likelihood of Success on the Merits.
The principal issue in this case is whether the defendants' decision not to renew the plaintiff in the position of Director on the ground that she had recently given birth to an illegitimate child deprived her of her constitutional rights. The plaintiff claims that the defendants violated her rights to substantive due process and equal protection of the laws as guaranteed by the Fourteenth Amendment. She also contends that the refusal to renew her contract constituted an unjustified interference with her right to personal privacy. For the reasons stated below, the Court finds that the plaintiff has shown a convincing and substantial likelihood of success on each of these claims.
Three different violations of substantive due process have been alleged. The plaintiff claims: (1) that the defendants had no basis in fact for discharging her; (2) that she received no warning that defendants regarded bearing an illegitimate child as a ground for termination; and (3) that the defendants refused to renew her contract on a basis that infringed her constitutionally protected right to privacy. The first two rights allegedly infringed, viz., the right to freedom from arbitrary governmental decisionmaking and the right to advance notice of the requirements for maintaining public employment derive from the Due Process Clause itself and therefore exist only in conjunction with a constitutionally recognized life, liberty, or property interest. See Ryan v. Aurora City Board of Education, 540 F.2d 222, 228-29 (C.A.6, 1976); Buhr v. Buffalo Public School District No. 38, 509 F.2d 1196, 1202-03 (C.A.8, 1974); Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, 4 (C.A.7, 1974). That is, to prevail on either of those claims the plaintiff must show that she has been deprived of a protected liberty or property interest. See Morris v. Board of Education of the Laurel School District, 401 F.Supp. 188, 213 n. 36 (D.Del.1975).
The defendants argue that the plaintiff was not entitled to tenure and that she had no property interest in employment beyond the expiration of her contract on June 30, 1978. The plaintiff was a member of the "Professional Unclassified Staff" and was subject to the provisions of the Non-Bargaining Employees Handbook, which provides that employees who have served more than 90 days "shall only be terminated for cause."
If the decision not to renew plaintiff's contract was arbitrary or made for reasons that had no basis in fact, she was deprived of her right to substantive due process. See Johnson v. Cain, 5 E.P.D. ¶ 8509, at p. 7437 (D.Del.1973). Delaware State College has no written policy that bars unwed mothers from occupying the position of Director. Indeed, the first and only manifestation of such a policy was Dr. Mishoe's decision to recommend that the plaintiff not be rehired. Although the College's Board of Trustees accepted that recommendation, the only evidence in the record concerning the reasons for the decision is Dr. Mishoe's testimony. He gave the following reasons for not renewing the plaintiff's contract: (1) that being an unwed mother would prevent her from effectively performing her duties as Director, (2) that she had not fulfilled her contractual obligation to be of good moral character, and (3) that the College might lose public support if the fact that the Director had recently borne an illegitimate child became public knowledge.
Dr. Mishoe explained the first reason while responding to a question whether the College had any policy concerning the sexual activities of faculty or staff members. He stated:
The emphasis is clearly on the presumed inability of an unwed mother to counsel effectively, but this Court has found that the plaintiff was not responsible for counseling students on personal matters. Since there is no evidence that the plaintiff's "lifestyle" as an unwed parent would diminish her effectiveness in any other capacity, the Court rejects the first reason as unsupported by the factual record.
The second reason advanced by defendants is also constitutionally invalid because it is the result of an irrebuttable presumption adopted by the defendants as to which the presumed fact does not necessarily follow from the proven fact. Andrews v. Drew Municipal Separate School District, 507 F.2d 611, 615 (C.A.5, 1975), cert. dismissed, 425 U.S. 559, 96 S.Ct. 1752, 48 L.Ed.2d 169 (1976); see Cleveland Board of Education v. La Fleur, 414 U.S. 632, 644-45, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). That is, the fact of unwed parenthood does not conclusively establish present or continuing immorality on the part of plaintiff. The Fifth Circuit expounded upon the shortcomings of such a presumption at length in Andrews v. Drew Municipal Separate School District, supra, while declaring unconstitutional a school district rule making unwed parents ineligible to be hired as teachers' aides. The following observations of the Court are equally applicable to this case.
The final reason for the defendants' refusal to renew the plaintiff's contract, the possibility of an adverse public reaction, does not provide a justification for depriving plaintiff of her constitutional rights. The courts have rejected the proposition that
Langford v. City of Texarkana, 478 F.2d 262, 267 (C.A.8, 1973); see Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). Therefore, this Court concludes that on the present record the defendants violated the plaintiff's right to substantive due process by arbitrarily excluding her from her job as Director. See Wieman v. Updegraff, 344 U.S. 183, 191-92, 73 S.Ct. 215, 97 L.Ed. 216 (1952).
The record also indicates that the plaintiff had no notice or warning that she would be terminated for deciding to bear an illegitimate child. The lack of notice of prohibited conduct may also constitute a violation of substantive due process. See Parducci v. Rutland, 316 F.Supp. 352 (D.Ala.1970).
As before stated, the claims discussed above were contingent on the existence of a property right; the plaintiff's other claims are not. In Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972), the Supreme Court held that:
Thus, the plaintiff would be entitled to relief if, as she contends, the refusal to renew her contract impermissibly burdened her right to personal privacy.
The following summary of the applicable legal principals taken from Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977), indicates that the plaintiff had a constitutionally protected right to choose whether or not to bear an illegitimate child.
This does not mean, however, that the defendants and other government officials may never deny public employment to a person on the ground that he or she is the parent of an illegitimate child. But the courts will carefully scrutinize such decisions. The Supreme Court held in Carey v. Population Services International, supra, that
At oral argument the defendants contended that this case is similar to Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), in which the Supreme Court upheld a state regulation that excluded nontherapeutic abortions from the class of medical expenses incident to pregnancy and child birth subsidized by the state's welfare program. In Maher, the Court held that a woman does not have an absolute right to have an abortion but rather a right to be free "from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." Id. at 473-74, 97 S.Ct. at 2382. Because the Court found that the regulation did not impinge upon any fundamental right of privacy, it sustained the regulation under the less demanding rational basis test. Id. at 478-80, 97 S.Ct. 2376.
The defendants argue that their refusal to renew the plaintiff's contract does not directly interfere with her right to have an illegitimate child and that, under Maher, this Court should require only that they show their actions be rationally related to a legitimate state interest. This argument, which is reminiscent of the discredited notion that public employment is a "privilege" and not a "right," is wholly unpersuasive. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Supreme Court struck down a regulation that effectively disqualified a Saturday Sabbatarian from eligibility for unemployment compensation. The Court reaffirmed the well-established principle that conditions and qualifications upon governmental privileges and benefits that tend to inhibit constitutionally protected activity are invalid. Id. at 404 & n. 6, 405-06, 83 S.Ct. 1790. It is undisputed in the case sub judice that the plaintiff would have been rehired as Director had she not had a child out of wedlock. "[T]he imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of . . . [privacy] rights . . . and thereby threaten[s] to `produce a result which the State could not command directly.'" See Sherbert v. Verner, supra, 374 U.S. at 405, 83 S.Ct. 1790. Accordingly, this Court concludes that the defendants must establish a compelling state interest for their decision not to renew the plaintiff's contract.
Having already concluded that the reasons given for the non-renewal of the plaintiff's contract may be arbitrary and without any basis in fact, the Court considers it virtually a foregone conclusion that the defendants will not be able to establish a compelling state interest sufficient to justify the intrusion upon the plaintiff's right to decide to bear an illegitimate child. In this connection the Court notes only two additional
The plaintiff also claims that the defendants violated her right to equal protection of the laws in that they took no action against other members of the Professional Unclassified Staff who are known to be parents of illegitimate children. Governmental employment policies which arbitrarily discriminate against a particular person, group or class have been held to violate the Equal Protection Clause. E. g., Andrews v. Drew Municipal Separate School District, 507 F.2d 611 (C.A.5, 1975), cert. dismissed, 425 U.S. 599, 96 S.Ct. 1752, 48 L.Ed.2d 169 (1976); Trister v. University of Mississippi, 420 F.2d 499 (C.A.5, 1969). Ms. Lewis has testified that two of the six women on her staff as Director had had children out of wedlock. In fact, one of those women is now Acting Director in the plaintiff's absence. The record also indicates that the College's librarian had a child out of wedlock and that the Resident Manager of one of the male dormitories is the father of an illegitimate child. Finally, the defendants have taken no action against Charles E. Henderson, Jr., who has admitted to the plaintiff and to the Family Court that he is the father of her child. Mr. Henderson is an assistant football coach and assistant director of the Student Center at the College.
Dr. Mishoe testified that he knew nothing about any of these matters prior to the institution of this lawsuit. He also testified that he had not removed any of the employees referred to from contacts with students because he was waiting for someone to establish that the allegations made by the plaintiff were true. Nothing in the record suggests that any of the professional staff identified as being parents of illegitimate children have significantly less contact with students in their jobs than the plaintiff did in hers. Nor is there any evidence that the defendants are actively investigating the allegations made by plaintiff. The record to date, therefore, supports an inference that the defendants do not intend to remove any of the individuals referred to from their present position. Because no rational basis has been advanced by the defendants for the disparate treatment accorded the plaintiff, the Court finds that the plaintiff also has met her burden of showing a probability of success on the merits of her equal protection claim regardless of the level of scrutiny applied.
II. Irreparable Harm.
The plaintiff avers that she will suffer irreparable harm unless she is granted injunctive relief because (1) she has been deprived of her constitutional rights; (2) she may be forced to declare bankruptcy due to the $5,867 reduction in her salary; (3) she will be stigmatized by the loss of her position as Director for what has been deemed "immoral conduct," and (4) there is a shortage of positions of equal responsibility available at a comparable salary level.
The factual record does not support either the third or the fourth allegation and the Court rejects both of them. Whether the monetary loss the plaintiff will suffer during the pendency of this litigation due to the $5,867 reduction in her annual salary constitutes irreparable injury depends on whether she has an adequate remedy at law. As the Court noted in footnote 3, supra, the Eleventh Amendment may bar an action in federal court for damages and back pay against the College and the individual defendants in their official capacities.
In Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976), the Supreme Court held that:
And most courts have granted preliminary injunctive relief in cases where a deprivation of constitutional rights has been alleged and a strong probability of success on the merits has been established without requiring additional proof of irreparable harm. 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948, at p. 440 n. 39; see, e. g., Quaker Action Group v. Hickel, 421 F.2d 1111, 1116 (C.A.D.C.1969); Keefe v. Geanakos, 418 F.2d 359 (C.A.1, 1969); Henry v. Greenville Airport Commission, 284 F.2d 631, 633 (C.A.4, 1960). The Third Circuit endorsed this view in Lewis v. Kugler, 446 F.2d 1343, 1350 (C.A.3, 1971), stating:
Accord Wecht v. Marsteller, 363 F.Supp. 1183, 1190 (W.D.Pa.1973); Public Funds for Public Schools of New Jersey v. Marburger, 358 F.Supp. 29, 42-43 (D.N.J.1973), summarily aff'd, 417 U.S. 961, 94 S.Ct. 3163, 41 L.Ed.2d 1134 (1974); Hairston v. Hutzler, 334 F.Supp. 251, 254 (W.D.Pa.1971).
The plaintiff in this case has made a strong showing that her constitutional rights were violated and that, as a result, she has had to accept a lower paying job in other than her chosen field.
III. Harm to Other Interested Parties.
The defendants contend that they will suffer harm if the Court orders them to reinstate the plaintiff because she can no longer be effective as a counselor for the approximately 450 women in residence at Delaware State College. However, as the Court noted in assessing the merits of the plaintiff's claims, she does not in fact counsel students regarding personal or social problems. Moreover, the woman currently serving as Acting Director also has a child born out of wedlock. The plaintiff performed her responsibilities as Director satisfactorily for at least six years and the Court has no reason to expect that her status as an unwed mother will reduce her effectiveness in the future.
The defendants further contend that reinstatement of the plaintiff may lead to a decrease in female enrollment and a reduction in future appropriations to the College by the General Assembly. There is no evidence to support these fears and, even if there were, the Court does not consider community resentment a permissible ground for denying injunctive relief in this case. See Sterzing v. Fort Bend Independent School District, 496 F.2d 92, 93 (C.A.5, 1974) (per curiam).
On the other hand, the defendants can be expected to derive some benefit from an order of reinstatement, since it will enable
Finally, the Court will require the plaintiff, pursuant to Rule 65(c), F.R.Civ.P., to post an unsecured bond in the amount of $5000 to ensure that, in the event the defendants prevail at trial, the College is reimbursed for any excess monies paid to the plaintiff as a result of the preliminary injunction.
IV. The Public Interest.
The defendants argue that because this case has received widespread publicity, reinstatement of the plaintiff to her former position pending resolution of this litigation will be interpreted as sanctioning bearing children out of wedlock. Perhaps so, but that is not the intent of the Court's action today. The Court expresses no opinion on the morality of bearing illegitimate children. The Court does hold, however, that governmental policies that intrude on a person's private right to bear or beget an illegitimate child must be supported by a compelling state interest and be tailored to achieve that interest without needlessly burdening a recognized constitutionally protected freedom. The evidence in this case clearly establishes that the plaintiff had no notice that bearing a child while unmarried was considered grounds for dismissal, that the reasons given for the non-renewal of her contract had almost no basis in fact, and that other similarly situated employees of the College who have had illegitimate children are not likely to be disciplined. The public interest would be disserved if such flagrant disregard for an individual's constitutional rights were tolerated for even a minimal period of time.
Accordingly, the Court concludes that the plaintiff is entitled to the temporary injunctive relief she seeks. An order will be entered directing the defendants to reinstate her as Director pending final resolution of this action.
This Opinion shall constitute the Court's findings of fact and conclusions of law as required under Rule 52(a), F.R.Civ.P., on the plaintiff's motion for a preliminary injunction.
Recent Supreme Court decisions and numerous federal circuit court cases indicate that injunctive decrees which are addressed to public officials engaged in unconstitutional state action and which are "prospective in nature" do not run afoul of the doctrine of Eleventh Amendment immunity. E. g., Edelman v. Jordan, 415 U.S. 651, 662-69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); see Fanty v. Pennsylvania Dept. of Public Welfare, 551 F.2d 2, 4-5 (C.A.3, 1977); Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 43 (C.A.3, 1974), vacated and remanded on other grounds 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285, 1292 (C.A.6) cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974); Safeguard Mutual Ins. Co. v. Miller, 472 F.2d 732 (C.A.3, 1973); Williams v. Eaton, 443 F.2d 472 (C.A.10, 1971); Carter v. Gallagher, 452 F.2d 315, 322 (C.A.8, 1971) cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); Board of Trustees of Arkansas A. & M. College v. Davis, 396 F.2d 730, 732-33 (C.A.8) cert. denied, 393 U.S. 962, 89 S.Ct. 401, 21 L.Ed.2d 375 (1968). In this case, the Court is presently asked only to grant prospective equitable relief in the form of restraining the individual defendants from filling the vacancy created by plaintiff's termination and reinstating her to the position she held prior to her termination. See Skehan v. Board of Trustees of Bloomsburg State College, supra. Although an award of such relief may, as a necessary consequence of compliance in the future, require the expenditure of state funds, such an "ancillary effect," as Edelman v. Jordan noted, is not precluded by the Eleventh Amendment. 415 U.S. at 667-68, 94 S.Ct. 1347. The Court thus concludes as a matter of law that the College and the individual defendants in their official capacities are not shielded by Eleventh Amendment immunity with respect to the limited injunctive relief sought by the plaintiff. Whether Eleventh Amendment immunity may be successfully asserted as a defense to any claim for damages, backpay or attorneys' fees against the college or the individual defendants in their official capacities is an issue the Court need not reach today. See Edelman v. Jordan, supra.