dissenting:
I respectfully dissent. I would affirm the district court’s denial of defendants’ motion for summary judgment. I agree with the district court that genuine issues of material fact remain as to whether the defendants are entitled to qualified immunity. Where the determination of qualified immunity depends on material factual disputes, it is appropriate for a court to deny summary judgment so that these disputes may be resolved by the trier of fact. Roth v. Veterans Administration, 856 F.2d 1401, 1408-10 (9th Cir.1988) (whether defendants deprived plaintiff of his property interest required “resolution of several disputed factual issues” and so the court appropriately denied qualified immunity for defendants on summary judgment).
To address the issue whether the defendants are entitled to qualified immunity, an understanding of the basic facts is essential. In the early afternoon of June 15, 1999, before plaintiffs were notified of their demotions, the San Diego Board of Education posted their names in the San Diego Unified District Educational Center informing the public that the Board intended to demote the plaintiffs at a meeting to be held that evening. That evening, armed San Diego Unified School District police officers escorted plaintiffs from their offices in schools located throughout the District to the Board of Education meeting. At this meeting, the Board notified plaintiffs that they would be removed immediately from their current positions as principals and vice-principals and demoted to their former teaching and counseling positions. Plaintiffs were told they imme*908diately would be placed on paid administrative leave for two weeks and would return to their former teaching and counseling positions on July 1st when the new school year began. Board members told plaintiffs that they were not to return to their former schools without being accompanied by District police officers. The police officers escorted plaintiffs back to their respective schools. On their arrival, each plaintiff was instructed to remove their personal items. Plaintiffs were then escorted off of their school’s premises.
Two weeks later, each plaintiff requested a separate statement of reasons for his or her demotion. The Board provided each plaintiff a statement in accordance with Cal. Ed.Code § 44896 and San Diego School District Administrative Procedure (AP) 7767 § C.4. The statements varied in content but commonly claimed that each plaintiffs style or vision “of instructional leadership fails to match the vision for school reform” set by the District. Each plaintiff then filed an administrative appeal pursuant to AP 7767 § C.4 and 7113 § C.2. Defendants informed each plaintiff that they were not entitled to an appeal nor were they entitled to any of the other due process protections set forth in the District Administrative Procedures.
The Administrative Procedures of the San Diego Unified School District had been in effect since 1976. The Board had promulgated the procedures under the authority of Cal. Ed.Code § 35160. Section 35160 authorizes the Board of a school district to enact local legislation to meet the needs of each district’s unique circumstances, provided that local regulations or policies do not conflict with state law. Cal.Ed.Code § 35160(a). AP 7767 and 7113 outline District policies and procedures governing adverse actions “against certificated management, supervisory, and confidential employees.” AP 7767 and 7113 provide various due process protections, such as the right to appeal and the right to representation by counsel, for employees demoted by the Board. AP 7767 defines demotion as “an involuntary change of assignment, based on employee performance, to a position at a lower salary grade.” AP 7767.
Though its applicability is contested, a Memorandum of Understanding (MOU) between the School District and the Administrators Association of San Diego that clarified and fortified the due process rights of plaintiffs was also in effect at the time plaintiffs were demoted. The original MOU of 1992, the MOU that preceded the MOU in effect when plaintiffs were demoted, was the result of extensive negotiations between the Administrators Association and the School District. District officials testified that district legal counsel reviewed that agreement and the subsequent agreement. A former superintendent of the District who had participated in drafting the MOU of 1992 testified that the due process protections were intended to apply to the plaintiffs’ demotion.
Defendants San Diego Unified School District and Board of Education now argue that they cannot be held to the due process guarantees these documents extended to the plaintiffs because defendants never had the authority to enact those guarantees under California law. They contend they are entitled to qualified immunity because the plaintiffs cannot have a clearly established right based on documents that are trumped by state law.
The majority accepts this argument noting that the terms of public employment in California are generally regulated by statute. The majority concludes that the silence of the Education Code on the due process protections extended in the Administrative Procedures means that no process above what is expressly granted *909by statute is available to the plaintiffs. Further, the majority argues that contracts cannot circumvent controlling statutes and thus no property interest can arise from the MOUs.
While I agree with the general principles cited by the majority, I find no conflict between the California Education Code and San Diego’s Administrative Procedures and the Memorandum of Understanding. Assessment of this very issue by the California Court of Appeal and the District’s own interpretation of state law strongly suggest that defendants did create legitimate additional due process protections for its administrative and supervisory employees. See Misasi v. W.C. Jacobsen, 55 Cal.2d 303, 308, 10 Cal.Rptr. 850, 359 P.2d 282 (1961) (“the administrative construction of a statute by those charged with its interpretation and enforcement is entitled to great weight, and courts will generally not depart from such an interpretation unless it is clearly erroneous.”). The additional due process guarantees provided by the Administrative Procedures — i.e. the right of demoted administrators to appeal and to be represented by counsel — created a property interest in plaintiffs in their employment. Defendants deprived plaintiffs of their property interest when they refused to allow the plaintiffs to exercise their rights under the Administrative Procedures.
We look primarily to state courts for interpretations of state law. See Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.1985) (explaining that when interpreting state law, courts must look to decisions by the highest court of the state and other sources such as treatises and restatements). The California Court of Appeal, in McFall v. Madera Unified School District, 222 Cal.App.3d 1228, 272 Cal. Rptr. 345 (1990), was presented with a factual situation nearly identical to that of the plaintiffs in the instant case. In McFall, the Court of Appeal addressed the issue whether a School District is prohibited by state law from enacting additional due process protections for its principals. Under the facts of McFall, the Madera Board of Education demoted the plaintiff, a principal, at the end of his one year term. He argued that his due process rights had been violated because the Board had failed to follow its own administrative procedures that required the superintendent to initiate all demotions. The Court of Appeal ultimately decided that the District’s administrative procedures explicitly limited the requirement to “ordinary” circumstances where the plaintiffs demotion had been in “extraordinary” circumstances. The important aspect of the decision is that the court approved of the additional due process protections the District had afforded the principal in their administrative procedures. McFall, 222 Cal.App.3d at 1236, 272 Cal.Rptr. 345. The Court of Appeal made no mention that the additional procedures created by the Madera School District conflicted with state law, but explicitly found that the plaintiff was entitled to those procedures. McFall, 222 Cal.App.3d at 1236, 272 Cal.Rptr. 345 (“to be sure appellant was entitled to the benefits of No. 4113.2”). The Court of Appeal further cited Jones v. Palm Springs Unified School District, 170 Cal.App.3d 518, 529, 216 Cal.Rptr. 75 (1985), with approval and quoted language from Jones indicating that the incorporation of school board rules and regulations into the plaintiffs contract expanded his due process rights. McFall at 1235, 272 Cal.Rptr. 345.
The majority makes much of the fact that both the plaintiffs in Jones and McFall served their respective terms as provided by their contract. It is important to note that if the Memoranda of Understanding apply to plaintiffs, they possessed *910a contract with the District that incorporated the administrative procedures. However, as the majority points out, controlling state law may not be circumvented by a contract. As a consequence, the existence of a contract could not be the basis on which the McFall court found the additional due process protections acceptable. The McFall court approved applying the additional due process guarantees accorded to the plaintiff by the administrative procedures. This strongly indicates that these additional due process guarantees are not forbidden by California law.
Our court has been clear that a contract is not required for a property interest to exist. Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir.1998) (where a rule or understanding is in place between an employer and an employee, a property interest may arise despite the lack of a contract). Even probationary or non-tenured employees may have property interests in their jobs. Roth, 856 F.2d 1401, 1409 (9th Cir.1988) (“even as a probationary employee, Roth could still have a property interest in his job”); see also Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971) (holding that a teacher without tenure or formal contract enjoyed due process rights).
Property interests are not solely grounded in state law or in contracts, but arise from a variety of sources from which rules or policies develop that create entitlements to benefits. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (stating that “nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it”); See Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (finding that a “common law” of a particular institution developed by circumstances of the employee’s service can also create a property interest). The plaintiffs claim that a property interest arose from the San Diego School District Administrative Procedures and the Memoranda of Understanding. However, there are material factual issues that must be resolved to determine whether the Administrative Procedures and the MOUs apply to the plaintiffs. The plaintiffs are entitled to the due process protections of the Administrative Procedures only if their demotions qualify as a demotion based on performance under the procedures. There is a factual dispute as to whether the reasons given for the demotions were based on performance. There is also a factual dispute as to whether the 1992 MOU provision that made AP 7767 and 7113 the “guarantee of due process for Management Team members” continued beyond the 1995 MOU which was silent on the subject. Board members testified that the district had no intention of eliminating the due process guarantees for Management Team members by execution of the 1995 MOU. Such removal of guarantees was never discussed with the Administrators Association. Plaintiffs also point out that the 1992 MOU stated “[t]he provisions of this agreement shall remain in effect until modified by the District and the [Administrators Association], Any modifications must be agreed to by both the District and the [Administrators Association].” Defendants reject this evidence. Because there are factual disputes as to whether the demotions were based on performance and whether the due process guarantees were undisturbed by the 1995 MOU, the district court correctly denied summary judgment.
A property interest does not fail to be clearly established simply because the relationship among statutes, local legislation and contracts is complicated. Nor does a right fail to be clearly established simply *911because there are factual disputes as to whether the various instruments are applicable to the plaintiffs’ particular grievances. See Roth, 856 F.2d at 1409 (“whether [a mutual] understanding [creating a property interest] exists will frequently turn on factual issues.”). I would allow the case to go forward to resolve the material factual issue of whether plaintiffs’ reassignments were based on their performance and so qualified as demotions under the Administrative Procedures.
I would affirm the judgment of the district court.