Manning v. Dakota Cty. Sch. Dist.

Bethany M anning, appellee , v. Dakota C ounty
SChool D iStriCt no. 22-0011, alSo known aS
South Sioux C ity C oMMunity SChoolS,
a politiCal SuBDiviSion of the
State of neBraSka , appellant.
782 N.W.2d 1
Filed April 23, 2010. 	No. S-09-714.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Attorney Fees. Attorney fees and expenses may be recovered in a civil action
only where provided for by statute or when a recognized and accepted uniform
course of procedure has been to allow recovery of attorney fees.
3. Civil Rights: Attorney Fees. If 42 U.S.C. § 1983 (2006) would have been an
appropriate basis for relief, then the plaintiff in such action is entitled to attorney
fees under 42 U.S.C. § 1988 (2006).
4. ____: ____. A litigant cannot obtain attorney fees simply by an incantation of 42
U.S.C. § 1983 (2006).
5. Municipal Corporations: Civil Rights: Liability. Respondeat superior is an
insufficient basis for establishing liability of a municipality under 42 U.S.C.
§ 1983 (2006), and municipal liability under § 1983 is limited to actions for
which the municipality is actually responsible.
6. Negligence: 	Liability: 	Municipal 	Corporations: 	Public 	Officers 	and
Employees. A municipality is liable under 42 U.S.C. § 1983 (2006) only when
the execution of a government’s policy or custom, whether made by its law-
makers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.
7. Due Process. Procedural due process is flexible and calls for such protections as
the particular situation demands.
8. ____. Where a state must act quickly, or where it would be impractical to provide
predeprivation process, postdeprivation process satisfies the requirement of the
Due Process Clause.
9. Due Process: Public Officers and Employees. In the case of random, unautho-
rized deprivations by state employees, due process does not require a predepriva-
tion hearing; rather, postdeprivation state tort remedies are sufficient.
Appeal from the District Court for Dakota County: williaM
BinkarD, Judge. Affirmed in part, and in part reversed.
Kelley Baker and Steve Williams, of Harding & Schultz,
P.C., L.L.O., for appellant.
Scott J. Norby, of McGuire & Norby, for appellee.
740 	279 NeBRASKA RePORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

heaviCan, 	C.J., 	wright, 	C onnolly, 	gerrarD, 	Stephan,
MCC orMaCk , and M iller-lerMan, JJ.
MCC orMaCk , J.
NAtURe OF CASe
the Dakota County School District No. 22-0011 (the school
district) appeals from a judgment against it in an action brought
by Bethany Manning for backpay, reinstatement of employ-
ment, and attorney fees and costs. the school district had hired
Manning to fill a vacancy for a full-time teaching position, but
because of concerns about her qualifications, the school district
designated her as a “long-term substitute.” this designation
deprived Manning of any contractual rights under the collec-
tive bargaining agreement and statutory rights granted to “pro-
bationary certificated employees” under the Nebraska tenure
statutes.1 Manning’s employment was eventually terminated
without notice and hearing as provided for under § 79-828 for
probationary certificated employees.
BACKGROUND
the facts leading up to the current appeal are largely undis-
puted and can be found in the related opinion of South Sioux
City Ed. Assn. v. Dakota Cty. Sch. Dist.2 When a full-time
teacher for the school district resigned after several years of
service, the school district needed to fill the vacancy before
the start of the 2007-08 school year. the position involved
teaching students who are deaf or hard of hearing. three
people were involved in the hiring process: the student serv-
ices director, the assistant superintendent, and the principal.
three people applied for the job, but only Manning had the
required qualifications.
Despite Manning’s qualifications, the student services direc-
tor was not convinced that Manning was a good fit for the
teaching position. Because of these doubts, the student serv-
ices director and the assistant superintendent decided to offer
1 Neb. Rev. Stat. §§ 79-824 through 79-845 (Reissue 2008).
2 South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., 278 Neb. 572, 772
N.W.2d 564 (2009).
MANNING v. DAKOtA Cty. SCH. DISt. 	741
Cite as 279 Neb. 740

Manning the position as a “long-term substitute.” they believed
that as a “long-term substitute,” Manning did not fall under the
terms of the teachers’ collective bargaining agreement with the
school district or under the statutory protections granted to cer-
tificated employees.3 thus, the school district could continue to
look for better candidates for the job and replace Manning in
the manner and at the time it saw fit.
the student services director offered Manning a reduced
“substitute teacher” salary for the first 20 days and a standard
salary based on her education level and years of experience
thereafter. In an e-mail, the assistant superintendent of the
school district told Manning she would not be entitled to sick
leave or any of the other benefits provided to teachers who are
covered by the collective bargaining agreement. And at the end
of the first semester, the school district would reopen interviews
for the position and Manning could “reapply” at that time. No
formal contract was presented to Manning or approved by the
school board.
Manning accepted the offer and began her employment
at the beginning of the school year. At the end of the first
semester, she reapplied for the position. By that time, however,
one of the previously unsuccessful applicants had acquired
the required certification to also be qualified for the job. On
December 11, 2007, the student services director informed
Manning that the school district had found someone else to
fill the position and that the last day her services would be
required was December 13.
the South Sioux City education Association initiated a
grievance against the school district, alleging that Manning
was a “full-time certificated teacher” and demanding that she
be issued a standard contract and be prospectively and retro-
actively granted all the economic and fringe benefits of the
collective bargaining agreement.
the South Sioux City education Association brought an
action before the Commission of Industrial Relations (CIR),
which found that the act of treating Manning as a substitute
3 See, e.g., §§ 79-824 through 79-845.
742 	279 NeBRASKA RePORtS

teacher rather than as a certificated employee was a prohibited
practice under Neb. Rev. Stat. § 48-824(2)(a) and (f) (Reissue
2004). the CIR concluded that Manning was a “certificated
employee” as defined by § 79-824 and was therefore covered
by the collective bargaining agreement.
Section 79-824 states in relevant part that a certificated
employee means and includes all teachers, “other than substi-
tute teachers, who are employed one-half time or more.”4 A
“[p]robationary certificated employee” is a teacher who has
served under a contract with the school district for less than
3 successive school years.5 the CIR reasoned that someone
cannot “substitute” for an open position, i.e., where the previ-
ous teacher’s absence is permanent. It also rejected the school
district’s contention that Manning was only “one-half time,”
because when it fired her, she happened to have served only
83.5 service days out of a total of 188 teacher service days in
2007-08. the CIR reasoned that it undermined teachers’ statu-
tory rights to allow the school district to unilaterally convert
otherwise probationary certificated teachers into substitutes
by not allowing them to work at least half the year. the
CIR awarded Manning backpay and the value of her benefits
through December 13, 2007, and it ordered the school district
to cease and desist from implementing unilateral deviations
from the collective bargaining agreement.
the school district appealed the CIR’s order, and, in South
Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., we affirmed.6 We
agreed that Manning was a probationary certificated employee
as defined by Neb. Rev. Stat. § 79-101(9) (Reissue 2008)
and § 79-824. We agreed generally with the reasoning of the
CIR. We also explained that Manning was not a “‘[s]ubstitute
employee’” as defined by Neb. Rev. Stat. § 79-902(38) (Reissue
2008), because she was not hired due to the “temporary absence
of a regular employee.”7
4 § 79-824(1).
5 § 79-824(3).
6 South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., supra note 2.
7 Id. at 583, 772 N.W.2d at 573.
MANNING v. DAKOtA Cty. SCH. DISt. 	743
Cite as 279 Neb. 740

During the pendency of the CIR action, Manning brought
this action, in a “Complaint for Declaratory Relief,” against the
school district in the district court for Dakota County. Manning
alleged that she was a probationary certificated employee under
§ 79-824(1) and (3) and that as a result, she was entitled to
a teacher’s contract under Neb. Rev. Stat. § 79-817 (Reissue
2008); salary and benefits as negotiated by the collective bar-
gaining agreement; and notice and hearing before termination,
as provided by § 79-828. Manning asked for reinstatement
with a written contract until such time as the school district
followed proper notice and hearing procedures to terminate her
employment. Manning also asked for backpay and consequen-
tial damages.
Manning requested attorney fees and costs pursuant to 42
U.S.C. § 1988 (2006). Manning alleged that the school dis-
trict violated her federal due process rights by canceling her
employment without notice and hearing.
the district court issued an order in favor of Manning on
all counts. the court granted Manning reinstatement until such
time as the school district followed correct statutory procedures
for her termination of employment, and it ordered that the
school district provide her with a written teacher’s contract.
the court granted Manning $6,321.37 in backpay and benefits
for the first semester, $27,507.38 in backpay from December
14, 2007, to May 23, 2008, and $53,396 for what she would
have earned in the 2008-09 school year. After Manning sub-
mitted an application and affidavit demonstrating attorney fees
and costs, the district court granted her $25,872.75 in attorney
fees and $841.38 in costs pursuant to § 1988. the school dis-
trict appeals.
ASSIGNMeNtS OF eRROR
the school district asserts that the district court erred when
it determined that (1) Manning was a probationary certificated
employee, (2) Manning had a property interest in her employ-
ment position, (3) Manning’s employment continued with the
school district, (4) the school district violated § 79-817 and
Manning was entitled to a written contract until lawfully ter-
minated, (5) the school district violated Manning’s due process
744 	279 NeBRASKA RePORtS

rights and was entitled to notice and hearing under § 79-828,
(6) Manning was entitled to the economic terms and condi-
tions of the collective bargaining agreement, (7) Manning was
entitled to backpay, (8) Manning was entitled to costs and
attorney fees under § 1988, and (9) attorney fees were fair
and reasonable.
StANDARD OF ReVIeW
[1] When dispositive issues on appeal present questions
of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the
court below.8
ANALySIS
C ertifiCateD eMployee
We have already concluded in South Sioux City Ed. Assn.
v. Dakota Cty. Sch. Dist. that Manning was a probationary
certificated employee.9 None of the arguments presented by
the school district in this appeal dissuade us from that con-
clusion. As a probationary certificated employee, Manning
was entitled by statute to an employment contract, certain
benefits under the collective bargaining agreement, and notice
and hearing before termination.10 the school district’s assign-
ments of error relating to the district court’s reinstatement
of Manning’s employment, with a contract, and the award
of backpay and benefits, are all premised on its continuing
argument that Manning was not a probationary certificated
employee. Having concluded otherwise, we find no merit to
those assignments of error.
attorney feeS anD C oStS
[2] We next consider the school district’s assignments of
error relating to the award of attorney fees and costs. As a
general rule, attorney fees and expenses may be recovered
in a civil action only where provided for by statute or when
8 State v. Scheffert, ante p. 479, 778 N.W.2d 733 (2010).
9 South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., supra note 2.
10 See §§ 79-824 through 79-845.
MANNING v. DAKOtA Cty. SCH. DISt. 	745
Cite as 279 Neb. 740

a recognized and accepted uniform course of procedure has
been to allow recovery of attorney fees.11 the district court
granted Manning attorney fees under § 1988, the Civil Rights
Attorney’s Fees Awards Act of 1976.
Section 1988 provides that in “any action or proceeding to
enforce a provision of [§] 1983 . . . the court, in its discretion,
may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.” Manning argues
that she presented an action to enforce civil rights pursuant
to 42 U.S.C. § 1983 (2006). Particularly, she argues that she
presented an action for deprivation of her property inter-
est in continued employment without procedural due process
of law.
[3] In enacting § 1988, Congress was more concerned with
the substance of plaintiffs’ claims than with the form in which
those claims are presented.12 Furthermore, the fact that a party
prevails on a ground other than § 1983 does not preclude an
award of attorney fees under § 1988. “If § 1983 would have
been an appropriate basis for relief, then [the plaintiff in such
action] is entitled to attorney’s fees under § 1988 . . . .”13
thus, when the claim upon which a plaintiff actually prevails
is accompanied by a “substantial,” though undecided, § 1983
claim arising from the same nucleus of facts, a fee award is
appropriate.14
[4] It is unclear to what extent, if at all, the district court
based its underlying award on § 1983, as opposed to statu-
tory and contractual rights. Regardless, in order to determine
whether the district court’s grant of attorney fees was proper,
we consider whether Manning presented a “substantial” § 1983
claim. A litigant cannot obtain attorney fees simply by an
incantation of § 1983.15
11 Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004).
12 Goss v. City of Little Rock, Ark., 151 F.3d 861 (8th Cir. 1998).
13 Id. at 866; Robinson v. City of Omaha, 242 Neb. 408, 495 N.W.2d 281
(1993).
14 Maher v. Gagne, 448 U.S 122, 100 S. Ct. 2570, 65 L. ed. 2d 653 (1980).
15 Smith v. Cumberland School Committee, 703 F.2d 4 (1st Cir. 1983).
746 	279 NeBRASKA RePORtS

At a minimum, a § 1983 claim cannot be considered “sub-
stantial” if it is foreclosed by governing law.16 In Francis v.
City of Columbus,17 for example, we concluded that attorney
fees under § 1988 were unavailable for the plaintiff’s pending
claims under state law because the § 1983 action could not
succeed. the action involved the tax Injunction Act, which
prohibited § 1983 actions for relief from state tax when there
is an adequate state remedy. We concluded that there were ade-
quate state remedies. In a similar case before the U.S. Supreme
Court, National Private Truck Council, Inc. v. Oklahoma Tax
Com’n,18 the Court explained that when no relief can be
awarded pursuant to § 1983, no attorney fees can be awarded
under § 1988.
For purposes of this opinion, we will assume without decid-
ing that Manning had a property interest in her continued
employment so as to implicate the Due Process Clause. But
even so, we conclude that Manning did not have an actionable
§ 1983 claim. Section 1983 provides, as relevant:
every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State . . . sub-
jects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
two 	related 	doctrines 	preclude 	Manning’s 	claim 	under
§ 1983. First, under the U.S. Supreme Court’s interpretation
of § 1983 as it pertains to municipalities and the doctrine of
respondeat superior, a school district is not liable for the acts
of its employees when those acts do not represent the official
policy of the school district. Second, under what is known as
16 See Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. ed. 2d 577
(1974).
17 Francis v. City of Columbus, 267 Neb. 553, 676 N.W.2d 346 (2004).
18 National Private Truck Council, Inc. v. Oklahoma Tax Com’n, 515 U.S.
582, 115 S. Ct. 2351, 132 L. ed. 2d 509 (1995).
MANNING v. DAKOtA Cty. SCH. DISt. 	747
Cite as 279 Neb. 740

the Parratt/Hudson doctrine,19 there is no federal due proc-
ess violation under color of state law when the deprivation
was the result of “random and unauthorized” acts by state
employees and the State provides adequate postdeprivation
remedies.
MuniCipal reSponSiBility for aCtS
of itS eMployeeS
[5] the U.S. Supreme Court originally held that municipali-
ties were not “persons” under § 1983.20 It has since overruled
this decision and has held that municipalities and other local
governmental units, such as school boards, are included among
those “persons” to whom § 1983 applies.21 However, the Court
has retained significant limitations to a municipality’s liability
for the acts of its employees in a § 1983 action. Focusing on
the causal language of § 1983, as well as legislative history
indicating that Congress doubted its power to oblige municipal-
ities to control the conduct of others, the U.S. Supreme Court
concluded that § 1983 did not mean to incorporate doctrines of
vicarious liability.22 the Court held that respondeat superior is
an insufficient basis for establishing liability and that munici-
pal liability under § 1983 is limited to actions for which the
municipality is actually responsible.23
[6] A rigorous standard of culpability and causation must be
applied to ensure that the municipality is not held liable solely
for the actions of its employees.24 the U.S. Supreme Court
19 Parratt v. Taylor, 451 U.S. 527, 541, 101 S. Ct. 1908, 68 L. ed. 2d 420
(1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327,
106 S. Ct. 662, 88 L. ed. 2d 662 (1986). Accord Hudson v. Palmer, 468
U.S. 517, 104 S. Ct. 3194, 82 L. ed. 2d 393 (1984).
20 Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. ed. 2d 492 (1961).
21 Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct.
2018, 56 L. ed. 2d 611 (1978).
22 Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. ed. 2d
452 (1986); Monroe v. Pape, supra note 20.
23 Pembaur v. City of Cincinnati, supra note 22.
24 Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 117 S. Ct. 1382,
137 L. ed. 2d 626 (1997).
748 	279 NeBRASKA RePORtS

elaborated that Congress did not intend municipalities to be
held liable unless action pursuant to “official municipal policy
of some nature caused a constitutional tort.”25 In other words,
a municipality is liable only when the execution of a govern-
ment’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury.26
there is no evidence in this case that it was the official
policy of the school district to create “long-term substitutes” in
an attempt to circumvent the Nebraska tenure statutes. Policy
is made when a decisionmaker, possessing final authority to
establish municipal policy with respect to the action, issues
an official proclamation, policy, or edict.27 “the fact that a
particular official—even a policymaking official—has discre-
tion in the exercise of particular functions does not, without
more, give rise to municipal liability based on an exercise of
that discretion.”28 Rather, “municipal liability under § 1983
attaches where—and only where—a deliberate choice to follow
a course of action is made from among various alternatives by
the official or officials responsible for establishing final policy
with respect to the subject matter in question.”29
In a footnote in the U.S. Supreme Court’s opinion in
Pembaur v. City of Cincinnati,30 the Court illustrated that a
county sheriff’s decision to hire or fire an employee would
not subject the municipality to § 1983 liability, even if the
municipality had left to the sheriff the discretion to hire and
fire employees and the sheriff had exercised that discretion in
an unconstitutional manner. the municipality would be liable
under § 1983, the Court explained, only if the municipal board
25 Monell v. New York City Dept. of Social Services, supra note 21, 436 U.S.
at 691.
26 Monell v. New York City Dept. of Social Services, supra note 21; Rush v.
Wilder, 263 Neb. 910, 644 N.W.2d 151 (2002).
27 Pembaur v. City of Cincinnati, supra note 22.
28 Id., 475 U.S. at 481-82.
29 Id., 475 U.S. at 483.
30 Pembaur v. City of Cincinnati, supra note 22.
MANNING v. DAKOtA Cty. SCH. DISt. 	749
Cite as 279 Neb. 740

had delegated its power to establish final employment policy
to the sheriff.31
Likewise, here, while the student services director, the assist-
ant superintendent, and the principal may have had the discre-
tion to make hiring decisions, they do not appear to have the
authority to establish final policy for the school district.
Nor is there evidence that it was the custom of the school
district to hire as “long-term substitutes” employees who
really were “probationary certificated employees,” and then
discharge them without notice or hearing. to the contrary, the
school superintendent testified that in his 20 years of experi-
ence, he had never hired an employee in this manner. A custom
is proved by demonstrating that a given course of conduct,
although not specifically endorsed or authorized by state or
local law, is so well settled and permanent as virtually to con-
stitute law.32
thus, the nucleus of facts here does not present a case
in which the municipality should be held responsible, under
§ 1983, for the actions of those who allegedly deprived
Manning of her due process rights. this is not a case where
“official municipal policy of some nature caused a consti-
tutional tort.”33 therefore, § 1983 would not have been an
appropriate basis for relief, and attorney fees under § 1988 are
not recoverable.
Parratt/Hudson D oCtrine
[7,8] Relatedly, because the acts of the school administra-
tors toward Manning were a particular, unauthorized response
to their unease with Manning’s candidacy for the position,
the State adequately protected Manning’s federal due process
rights by providing her with state postdeprivation remedies. In
a § 1983 claim, the procedural process due to a person who
has a property interest in continued employment is based in
federal constitutional safeguards. there is not a violation of
31 Id.
32 Monell v. New York City Dept. of Social Services, supra note 21; Fletcher
v. O’Donnell, 867 F.2d 791 (3d Cir. 1989).
33 Monell v. New York City Dept. of Social Services, supra note 21, 436 U.S.
at 691.
750 	279 NeBRASKA RePORtS

due process every time a government entity violates its own
rules.34 Moreover, a constitutional deprivation of procedural
due process actionable under § 1983 “is not complete when
the deprivation occurs; it is not complete unless and until the
State fails to provide due process.”35 this is distinguishable
from a violation of substantive constitutional rights, which
occurs at the moment the harm occurs.36 Procedural due proc-
ess is flexible and calls for such protections as the particular
situation demands.37 Where a state must act quickly, or where
it would be impractical to provide predeprivation process,
postdeprivation process satisfies the requirement of the Due
Process Clause.38
[9] Under the Parratt/Hudson doctrine, the U.S. Supreme
Court has held that in the case of “random and unauthorized”
deprivations by state employees, due process does not require
a predeprivation hearing; rather, postdeprivation state tort rem-
edies are sufficient.39 the Court has explained that because
such misconduct is inherently unpredictable, the state’s obli-
gation under the Due Process Clause is to provide sufficient
remedies after its occurrence, rather than to prevent it from
happening.40 Whether the individual employee, as opposed to
the State, can foresee the deprivation and provide a predepriva-
tion process is of no consequence. “the controlling inquiry is
34 Franceski v. Plaquemines Parish School Bd., 772 F.2d 197 (5th Cir. 1985).
See, also, e.g., Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998);
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (10th Cir. 1998).
35 Zinermon v. Burch, 494 U.S. 113, 126, 110 S. Ct. 975, 108 L. ed. 2d 100
(1990).
36 See, Halverson v. Skagit County, 42 F.3d 1257 (9th Cir. 1994); Bakken v.
City of Council Bluffs, 470 N.W.2d 34 (Iowa 1991).
37 Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct.
1487, 84 L. ed. 2d 494 (1985); Morrissey v. Brewer, 408 U.S. 471, 92 S.
Ct. 2593, 33 L. ed. 2d 484 (1972).
38 Gilbert v. Homar, 520 U.S. 924, 117 S. Ct. 1807, 138 L. ed. 2d 120
(1997).
39 Parratt v. Taylor, supra note 19, 451 U.S. at 541. Accord Hudson v.
Palmer, supra note 19.
40 Hudson v. Palmer, supra note 19.
MANNING v. DAKOtA Cty. SCH. DISt. 	751
Cite as 279 Neb. 740

solely whether the state is in a position to provide for predepri-
vation process.”41
Generally, conduct that is contrary to law is considered ran-
dom and unauthorized.42 the exception, not applicable here,
is that some courts have found deprivations, when effected
by high-level decisionmakers, cannot be considered “random
and unauthorized.”43 Furthermore, if a state procedure allows
unfettered discretion by a state actor, then an abuse of that dis-
cretion may be predictable, authorized, and preventable with a
predeprivation process.44
In Clark v. Kansas City Missouri School Dist.,45 a public
school teacher brought a § 1983 action alleging that the prin-
cipal and the district superintendent deprived her of property
without due process of law. Relying on the Parratt/Hudson
doctrine, the court noted that the teacher did not challenge the
procedures established by the school district, but challenged
the acts of certain employees. And the teacher did not present
evidence that the employees acted pursuant to any established
district procedure. their actions were, instead, random and
unauthorized. Because the State provided adequate common-
law remedies for the deprivation, the court concluded that
her due process claim failed as a matter of law. Similar cases
brought under § 1983 by teachers alleging that their termi-
nation, demotion, or involuntary medical leave violated pro-
cedural due process have failed because the actions were con-
sidered random and unauthorized and there was an adequate
state remedy.46
41 Id., 468 U.S. at 534.
42 Hamlin v. Vaudenberg, 95 F.3d 580 (7th Cir. 1996).
43 Dwyer v. Regan, 777 F.2d 825 (2d Cir. 1985).
44 See, Zinermon v. Burch, supra note 35; Hamlin v. Vaudenberg, supra note
42.
45 Clark v. Kansas City Missouri School Dist., 375 F.3d 698 (8th Cir. 2004).
46 Jefferson v. Jefferson Co. Pub. School Sys., 360 F.3d 583 (6th Cir. 2004);
Hartwick v. Bd. of Tr. of Johnson Cty. Com. Col., 782 F. Supp. 1507 (D.
Kan. 1992); Setchel v. Hart County School Dist., No. 3:09-CV-92, 2009
WL 3757464 (M.D. Ga. Nov. 6, 2009); Anderson v. Bd. of Educ. of City of
Chicago, No. 03 C 7871, 2004 WL 1157824 (N.D. Ill. May 21, 2004).
752 	279 NeBRASKA RePORtS

Manning does not challenge the Nebraska tenure statutes,
but asserts that the school administrators acted in violation of
those statutes. Not only were the school administrators’ actions
unauthorized, but, as already discussed, there is no evidence
that this was an ongoing custom such that the State should have
interceded to prevent it beyond the statutory mandates upon
which Manning relies. And certainly, given the strictures of the
tenure statutes, this is not a case where the district employees
were granted unfettered discretion. the adequacy of the state
postdeprivation remedies is not questioned, and Manning has
demonstrated their efficacy through this suit. Although state
remedies may not provide all the relief which may have been
available under § 1983, such as recovery of attorney fees, that
does not mean that the state remedies are not adequate to sat-
isfy the requirements of due process.47
In order to obtain attorney fees under § 1988, it was
Manning’s 	burden 	to 	demonstrate 	at 	least 	a 	“substantial”
§ 1983 claim. She has failed to do so. We find merit to the
school district’s assignments of error pertaining to the award
of attorney fees and costs, and we reverse that portion of the
lower court’s judgment. We need not address whether the fees
were reasonable.
CONCLUSION
We affirm the judgment awarding Manning reinstatement,
backpay, and benefits. We reverse the award of attorney fees
and costs.
affirMeD in part, anD in part reverSeD.
47 Parratt v. Taylor, supra note 19.
MANNING v. DAKOtA Cty. SCH. DISt. 	753
Cite as 279 Neb. 740