The opinion of the court was delivered by: PLATT
In a second amended complaint plaintiff sues for a mandatory injunction reinstating him to his position as a teacher in the public schools of the Union Free School District No. 26 (defendant "School District") nunc pro tunc as of January 3, 1975. As an adjunct to such equitable relief plaintiff seeks the back pay to which he would have been entitled from said date to this had his probationary service not then been terminated. Since this first claim of the plaintiff seeks primarily injunctive or equitable relief, there appears to be little, if any, question at present that it is maintainable at least against the members of the Board of Education to restrain them "from taking action in [their] official capacity" since fictionally the suit lies "against the individual officer and not against the state." Monell v. Department of Social Services of the City of New York, 532 F.2d 259, 265 (2d Cir. 1976), cert. granted, 429 U.S. 1071, 97 S. Ct. 807, 50 L. Ed. 2d 689 (1977); Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908).
In view of the dispositions hereinafter made on the merits, it is not necessary at this time to determine whether plaintiff pleaded and proved a case under 28 U.S.C. § 1331 and the Fourteenth Amendment. Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); City of Kenosha v. Bruno, 412 U.S. 507, 516, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975), modified on other grounds 527 F.2d 736 (2d Cir. 1975); Santore v. The Civil Service Commission, 443 F. Supp. 25 (No. 76 Civ. 1695) (S.D.N.Y. April 4, 1977); and see Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (Jan. 11, 1977); Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975), nor need we discuss further the question of whether the defendant Board of Education is a person within the meaning of 42 U.S.C. § 1983. See Monell v. Department of Social Services of the City of New York, supra; Turano v. Board of Education of Island Trees Union Free School District No. 26, 411 F. Supp. 205 (E.D.N.Y. 1976);
The same is true with respect to the second claim contained in plaintiff's second amended complaint insofar as such claim purports to be based on a deprivation of property without due process of law under Title 28 U.S.C. § 1343(3) and (4), and Title 42 U.S.C. § 1983, or Title 23 U.S.C. § 1331, and the Fourteenth Amendment to the United States Constitution. Again, our disposition on the merits renders it unnecessary for us to determine the more difficult question of whether the alleged failure to give appropriate notice of termination of employment to a non-tenured teacher under a union contract constitutes a "property" right which is protected by the Fourteenth Amendment.
Turning then to the facts, the parties stipulated to the following:
1. Plaintiff, John Turano, is a citizen of the State of New York, and at all times relevant herein the holder of a license as a teacher issued by the State of New York.
2. Defendant Board of Education of Union Free School District No. 26 is a municipal body established under the Education Law of the State of New York to administer the schools within that School District.
3. Defendants Richard Ahrens, William Richter, John Liberatore, Frank Martin, Richard Melchers and John Lively were at all times relevant herein duly elected members of the Board of Education of Island Trees Union Free School District No. 26, and are responsible for the operation of the School District.
4. Plaintiff obtained the license of teacher issued by the State of New York by successfully passing a competitive examination for such license and by being appointed to a position in the public schools of the Union Free School District No. 26.
5. During the course of plaintiff's probationary service, he was rated satisfactory and given excellent evaluations by his principal.
6. Based upon such rating, the superintendent of the district recommended that the plaintiff be granted tenure.
7. At the public meeting of the defendant Board of Education of Island Trees U.F.S.D. No. 26 held on November 26, 1974, the Board members present voted (4-1) to terminate the services of plaintiff effective January 3, 1975.
8. Defendant Board member William Richter petitioned the New York State Commissioner of Education Ewald Nyquist to remove four of the board members and dissolve the Board based on a number of incidents including the denial of tenure to plaintiff, in which Mr. Richter charged that he was denied information regarding the reasons for the denial of tenure. The Commissioner of Education dismissed such petition on the merits.
9. The contract between the Island Trees Teachers Association and the defendant Board of Education in Article XVIII-C-l-b provides as follows:
"Non-tenure teachers will be notifed of termination of employment not later than May 15th, except that for the tenure year, the teacher will be notified not later than March 15th, prior to completion of probationary period."
10. At a public meeting of the defendant Board of Education on December 19, 1974, the plaintiff requested the reasons for the denial of tenure and his termination.
In addition to the foregoing, the proof showed that the plaintiff was employed by the defendant, School District in January of 1972 and that his probationary term expired on or about January 3, 1975.
With respect to plaintiff's first claim, what took place at the regular meeting of the defendant Board of Education on November 26, 1974, and the special meeting of such Board on December 19, 1974, is crucial to plaintiff's claim of stigmatization and deprivation of his "liberty" in connection with the Board's denial of tenure to him. On this question, the Court credits the testimony of the former Superintendent of the defendant School, Dr. Richard C. Morrow, who, if anything, was partial to the plaintiff in that he recommended to the defendant Board that the plaintiff be given tenure and rated and praised his past performance very highly.
Dr. Morrow testified that the Board and he took the precaution of listing and referring to all personnel actions by category and number rather than by name to insure that all action taken by the Board in connection therewith would be kept confidential.
Dr. Morrow testified further that at an Executive Session of the defendant Board held on November 19, 1974, he recommended tenure for the plaintiff and was advised by several Board members that they intended to vote against such recommendation and that when he [Dr. Morrow] asked why, he was not given any reason therefor.
At the formal meeting a week later on November 26, 1974, Dr. Morrow said that he read a short statement which was highly laudatory and supportive of the plaintiff (and which later became a part of plaintiff's personnel file) and the defendant, John Liberatore, also made a statement in support of the plaintiff. Notwithstanding these recommendations, the defendant Board members voted four (4) to one (1) [Liberatore dissenting] to deny tenure to the plaintiff.
In the discussion which ensued in which the defendant Liberatore sought the reasons of the Board members who voted negatively on the question, Mr. Liberatore revealed the plaintiff's name to the members of the public who were attending the meeting. In answer to his demands for reasons, the other members of the Board asked the Board's attorney whether they were required to state reasons and received a negative reply.
Contrary to plaintiff's claims, Dr. Morrow was quite positive that no statement was made at this meeting by any Board member that they could not give the reasons for the denial of tenure ...