Decker v. North Idaho College

BROWNING, Chief Judge,

dissenting:

The district court found appellees violated appellant’s due process rights by denying him a pretermination hearing. See Board of Education v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The appropriate remedy for such a violation is reinstatement with back pay. Skehan v. Board of Trustees, 501 F.2d 31, 40 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975), opinion on remand, 538 F.2d 53, 63 (3d Cir. 1976); Wellner v. Minnesota State Junior College Board, 487 F.2d 153,157 (8th Cir. 1973); see Vitarelli v. Seaton, 359 U.S. 535, 545, 546, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Greene v. United States, 376 U.S. 149,161-62, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); cf. Mt. Healthy City School District v. Doyle, - U.S. -, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Wagie v. Murray, 546 F.2d 1329, 1336 (9th Cir. 1976). This remedy is particularly appropriate here because appellant was tenured and tenure was granted with full knowledge of two of the three condi*876tions subsequently given as reasons for non-retention.