(concurring and dissenting):
I agree with Judge Craven that the present record simply does not permit us to determine with certainty whether plaintiff’s action was at law, in which event it was error for defendant’s timely demand for a jury trial not to have been honored, or whether it was in equity where the district court could decree relief without intervention of a jury. Accordingly, I concur in vacating the judgment and remanding the case for further proceedings.
I am also in agreement with Judge Craven’s other holdings except with respect to (1) computation of monetary relief if plaintiff’s action is determined to be in equity, and (2) computation of damages, or, more properly, instructions to the jury as to how to compute damages, if plaintiff’s action is determined to be at law. In my view, the injury suffered by Mrs. Burt as a result of the denial of her constitutional right to procedural due process of law is unaffected by the characterization of the action in which redress was sought. In either law or equity, plaintiff should recover her full loss of earnings, including fringe benefits, from the date of her illegal discharge to the end of the school year in which she reached the age of retirement. If plaintiff is proceeding in equity, payment of those sums should be decreed. If plaintiff is proceeding at law, the jury should be told that this is the amount they should award.
Plaintiff was the victim of a breach of contract. Her contract was illegally terminated without observance of the procedural due process that the Constitution requires. As the injured party, she is entitled to recover the losses she sustained as a result of the breach. Those losses are measured by the value of the contract to her; i. e., what she would have received under the contract had the illegal breach not occurred. Manifestly, in a contract for personal services the measure of damages is the loss of compensation she would have been paid had she been permitted to perform her bargain, less what she actually earned or reasonably would have earned in the time that she was not required to perform her contract. 11 Williston, Contracts, § 1358 (Jaeger Ed. 1968); 4 Corbin, Contracts § 958 (1951). It matters not that the breaching party may have made an improvident bargain. To assert that damages may be measured by the value of the contract to the party committing the breach literally stands the law of contracts on its head. Such a holding is an open invitation to contracting parties to avoid their obligations by any means, fair or foul, if it subsequently appears that the value of their contract is less than they contemplated at the time that it was made, because, under such a holding, their liability is measured by the value of the contract to them, not by the value they promised to give.
Such a holding also has chilling implications for constitutional procedural protections; the lesson taught the state employer is that the constitutional safeguard of procedural due process may be safely ignored if adequate grounds for dismissal can be proved in the uncertain event of some future proceeding. The present case illustrates the danger of such an approach quite well. In the district court, both the plaintiff and the board contended that Mrs. Burt appeared before the court in a state much diminished from that of her days of competence as a teacher. The board contended that her decline preceded her dismissal; the plaintiff contended that her dismissal and its aftermath contributed in large part to her present nervous difficulties. Contrary to both, the district court found that Mrs. Burt must have been incompetent all along. The necessity of resolving conflicting evidence suggests the inadequacy of collateral pro*1208ceedings to protect a plaintiff’s rights in such situations, and argues for the need to put economic sanctions on the state employer to compel it to give notice and opportunity to be heard, and to compile the kind of record which would allow reliable assessment of the correctness of a challenged action.
Plaintiff suffered more than just loss of her salary. She was a member of a contributory state retirement fund for teachers. Had plaintiff been employed for the two years after her unlawful discharge until the end of the school year in which she reached retirement age, and made contributions to the fund based upon what her salary would have been, plaintiff’s pension upon retirement, under the option she selected, would have been substantially increased over the pension she is now receiving. Indeed, based upon actuarial tables showing plaintiff’s life expectancy of YJlh years, she would have received total additional pension benefits of $24,954.30.
I think that plaintiff is entitled to be compensated for pension rights which she lost as a result of her illegal discharge. In Horton v. Orange County Board of Education, 464 F.2d 536 (4 Cir. 1972), we held that a teacher discharged in violation of her procedural due process rights was entitled to recover back pay to the date of judgment in the district court even though it was found that good grounds for her dismissal existed. If unconstitutional dismissal did not extinguish defendant’s obligation to compensate her for her lost salary, it is difficult to see how it extinguished pension or other fringe benefits. Numerous authorities recognize that fringe benefits and other incidents to basic compensation are included within the concept of back pay. See, e. g., Rosen v. Public Service Electric & Gas Company, 477 F.2d 90, 95-96 (3 Cir. 1973) (retirement benefits); Bowe v. Colgate Palmolive Co., 489 F.2d 896, 903-04 (7 Cir. 1973) (vacation, sick pay, and bonus); Peters v. Missouri-Pacific Railroad Co., 483 F.2d 490, 498-99 (5 Cir. 1973), cert. denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 238 (1973) (mandatory retirement age and benefits); Hays v. Potlatch Forests, Inc., 465 F.2d 1081, 1084 (8 Cir. 1972) (overtime pay benefits); McAleer v. McNally Pittsburg Mfg. Co., 329 F.2d 273 (3 Cir. 1964) (retirement benefits and cash surrender value of group life insurance). See also 5 Corbin, Contracts § 1095, pp. 433-34 (1951).
The present case is no different from those cited merely because it has been found that the board was not improperly motivated in discharging Mrs. Burt. As stated above, the failure of the board to afford her procedural due process of law is enough to support a back pay award. See Horton v. Orange County Board of Education, 464 F.2d 536 (1972); see also Burton v. Cascade Union Dist. High School No. 5, 512 F.2d 850 (9 Cir. 1975). I perceive no reason in the present case to diminish that award to something less than the full amount of Mrs. Burt’s injury by excluding any of the normal elements of a back pay award.
It follows, I think, that if plaintiff is granted equitable relief, her monetary award should include lost wages and should require either that she be reinstated as an active member in the state retirement system to the date of actual retirement as if she had not been illegally discharged, as we approved in Morton v. Charles County Board of Education, 520 F.2d 871, 873, n. 4 (4 Cir. 1975), or that she be decreed entitled to the present commuted value of her lost right to future additional pension. In an action at law, the jury should be instructed to assess damages in a similar fashion.
Since, in my view, personal damage and the constitutional protections at stake are the same at law and in equity, I cannot subscribe to the suggestion that an award in equity should be less than an award at law. The assertion that there is a difference is unsupported by any citation of authority and no reason is advanced as to why a distinction should be drawn. In equity, Mrs. Burt presents a strong case. She can hardly *1209be deemed to have breached her contract. Even if an incompetent teacher, the quality of plaintiff’s services must have been known to defendants at the time that her yearly contract was last renewed. She had been a school teacher for more than 35 years, 21 years of which she served in the Edgefield County School District. It is perhaps significant that plaintiff had always taught at all-black schools and the decision to terminate her contract was made during the last year that the Edgefield County schools were operated on a segregated basis. Aside from the invidious inference which might well be drawn, defendant’s belated recognition of her lack of competence substantially dilutes its claim that it should not be required to make her whole.
Finally, I note that the opinion of Judge Craven, in which Judge Russell concurs, does not require a lesser award in equity. It holds that the district court’s declining to make a full monetary award in equity was not an abuse of discretion. Thus, the majority impliedly holds that the district court, in its discretion, might properly have made a greater award. I give voice to the hope that on remand the chancellor will reexamine his conscience and achieve full equity.