concurring.
My concurrence is limited to the result. In light of our recent decisions in Strickland v. Inlow, 485 F.2d 186 (8th Cir., filed Aug. 29, 1973) and Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973), I think it is fair to say that the concept of substantive due process is not wholly alien to the administration of public schools.
* We need not spell out the dimensions or limitations of that doctrine here, for I am satisfied on this record that appel-lee has not shown the action of the Board to have been arbitrary and capricious.
The record in this case shows that Superintendent W. B. Devine came to the Woodbury school system prior to the 1969-1970 school year. He testified as to his efforts to upgrade the school system. In February, he visited appellee’s English class and observed her teaching methods and her classroom relationship with students. Following this visitation he advised appellee that her work was unsatisfactory.
On March 13, 1970, he wrote Mrs. Scheelhaase:
The Woodbury Central School board is considering terminating your contract at the conclusion of the current 1969-70 school year.
Under Section 279.13 of the Code of Iowa, you have the right to request a private conference with the board. This must be done within five days of the receipt of this notice. You may also request a written statement. In you [sic] case it will be the low scholastic accomplishment as indicated by Basic Skills and I.T.E.D. tests.
The notice of termination given by the Board reiterated:
In compliance with Section 279.13 of the Code of Iowa, the following reason is given for your contract termination.
Below average scholastic accomplishment of your students in the area of your responsibility. (Language Arts)
At the trial, Superintendent Devine testified that he had recommended that the Board not renew her contract because her students displayed low scholastic performance in the language arts area and that one of the indications of this low achievement was the current Basic Skills tests. Mrs. Seheelhaase’s witnesses all testified that it was improper to use these test scores as a basis for evaluating a teacher’s performance. The district court specifically found in this regard:
4. The specific reason given plaintiff for termination was her professional incompetence as indicated by the low scholastic accomplishment of her students on the Iowa Tests of Basic Skills (ITBS) and Iowa Tests of Educational Development (ITED) [footnote omitted].
*2455. A teacher’s professional competence cannot be determined solely on the basis of her students’ achievement on the ITBS and ITED, especially where the students maintain normal educational growth rates.
But neither the testimony of appellee’s experts in the educational field nor the trial court’s finding suffices to establish the actions of the Board or Superintendent Devine as arbitrary and capricious.
Appellant-Devine possesses a Masters Degree in his field and has attained credit toward a Ph.D. degree. He has served as a teacher and a superintendent of schools for more than 14 years. In his work he has made a study of the Iowa Tests of Basie Skills and of Educational Developments. Without dispute, Mrs. Scheelhaase’s students disclosed below-average accomplishment in her subjects. The superintendent, in concluding on his experience that these test results reflected adversely upon the teaching competence of Mrs. Scheelhaase, may have been erroneous but the conclusion was not an unreasoned one, and that is the test.
The Board was entitled to rely upon the recommendation and conclusions of its Superintendent, notwithstanding the existence of strong opinions contrary to his regarding the use of the ITBS or ITED tests as a tool for teacher evaluation. Given a choice between experts, the Board was entitled to rely upon its own. In this case, the district court found that, “[a] teacher’s professional competence cannot be determined solely on the basis of her students’ achievement on the ITBS and ITED, especially where the students maintain normal educational growth rates.” We have no disagreement with such a statement. But in the Woodbury School District, based upon his education and training, the Superintendent arrived at a contrary determination relating to students in Mrs. Scheelhaase’s class. Thus its decision, even though premised upon an apparently erroneous “expert opinion,” cannot be faulted as arbitrary and capricious. The Board’s mere mistake in judgment or in weighing the evidence does not demonstrate any violation of substantive due process.
The Superintendent and the Board for the Woodbury, Iowa, Central Community School District possessed the right and responsibility of evaluating its teacher personnel, and such evaluations, where they are based on some evidence, even though possibly erroneous, will not serve to make those determinations subject to judicial review as unconstitutionally arbitrary and capricious.