                       United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-3762
                                   ___________

Louis C. Cross, III,                     *
                                         *
             Appellant,                  *
                                         *
      v.                                 *
                                         *
Cleveland Hammonds, Jr.,                 * Appeal from the United States
Superintendent of Schools of the         * District Court for the
Board of Education of the City of        * Eastern District of Missouri.
St. Louis; Board of Education for the    *
City of St. Louis; Personnel             *
Committee of the Board of                *
Education of the City of St. Louis,      *
                                         *
             Appellees.                  *
                                    ___________

                             Submitted: June 16, 2000
                                 Filed: August 22, 2000
                                  ___________

Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      O'BRIEN,1 District Judge.
                                ___________

BOWMAN, Circuit Judge.




      1
        The Honorable Donald E. O'Brien, United States District Judge for the Northern
District of Iowa, sitting by designation.
        Louis C. Cross, III, appeals the District Court2 order granting summary judgment
to Superintendent Cleveland Hammonds, Jr., the Board of Education of the City of St.
Louis, and the Personnel Committee of the Board of Education (collectively, the Board)
in this 42 U.S.C. § 1983 action alleging that the Board violated Cross's due process
rights in assigning him to a ten-month guidance counselor position after he took a leave
of absence from his position as a twelve-month guidance counselor position and in
failing to hold a hearing prior to the assignment. We affirm.3

        The relevant facts are undisputed. Cross is certified by the State of Missouri to
serve as a guidance counselor in public schools. In July 1993, Cross took a leave of
absence from his job as a twelve-month guidance counselor for the St. Louis City
School District in order to serve as president of the St. Louis Teachers Union, Local
420. In his absence, the Board filled the twelve-month guidance counselor position,
which was the only such position within the St. Louis City School District. Four years
later, Cross's term as president of Local 420 ended, and he applied for reinstatement
to his position. Because the only twelve-month position was filled, Cross was assigned
to a ten-month guidance counselor position. Both positions pay the same biweekly
salary, but the ten-month position has a proportionally smaller (10/12) annual salary
than the twelve-month position.

       Cross's due process claim has both a substantive and a procedural component.
Substantively, Cross claims that he has a due process right to reinstatement to his
twelve-month guidance counselor position by virtue of the historical practice of the
District in reinstating Union presidents to their prior position. Procedurally, Cross



      2
        The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
      3
        Like the District Court, we do not reach Cross's claim that he is entitled to
punitive damages. Given the result of this appeal, the issue is moot.
                                           -2-
claims that he has a due process right to a hearing under Mo. Rev. Stat. § 168.281
(1994). Our review is de novo.

       While it is true that a constitutionally protected property interest may arise based
on historical employment practices, the interest must be based on a "mutually explicit
understanding," not just a unilateral expectation. Hughes v. Whitmer, 714 F.2d 1407,
1414 (8th Cir. 1983), cert. denied, 465 U.S. 1023 (1984). Here, the Board's
understanding of that interest was embodied in their Regulation R4620, which stated,
"[U]pon the expiration of an extended leave of absence with or without pay, the
employee may be reinstated to the position he/she occupied at the time the leave was
granted or one for which he/she is qualified . . . ." (emphasis added). Further, the
historical practices that Cross points to actually reinforces the Board's understanding:
Although three of the past Union presidents were reinstated to their prior postions, one
former president, whose prior position was classroom teacher, was assigned to a
counselor position after her leave of absence. In short, we believe that Cross's
expectation, to be reinstated to exactly the same position in which he had served, is
contradicted both by the historical practice and the Board's Regulation. Therefore,
Cross's substantive claim must fail.

       Cross's bases his claim to a hearing on Mo. Rev. Stat. § 168.281, which requires
that a hearing be held prior to the removal, suspension, demotion, or salary reduction
of a permanent, noncertificated employee. Because Cross is a certified guidance
counselor, however, § 168.281 does not apply to him. Moreover, Cross is not entitled
to a hearing under § 168.221, which provides the right to a hearing for teachers and
principals. Instead, Cross belongs to that narrow class of school employees for which
Missouri law provides no right to a due process hearing. See American Fed'n of Sch.
Adm'rs, AFL-CIO v. St. Louis Pub. Sch., 666 S.W.2d 873 (Mo. Ct. App. 1984)
(holding that neither § 168.221 nor § 168.281 applies to certificated school
administrators). Accordingly, Cross's procedural claim fails as well.


                                            -3-
AFFIRMED.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                           -4-
