c39:No. 72-1918

KNOCH, Senior Circuit Judge
(dissenting).
For the reasons set forth in our unpublished order of February 14th, 1974, a portion of which I quote below, I respectfully dissent. In my opinion, the decision of the District Judge should be affirmed.
“The amicus curia argued, for abstention, that there were well-defined statutory Indiana State provisions, with an adequate remedy of state review, where the necessity of developing state substantive law on teachers’ rights was of great importance, the existing and future potential of litigation immense, and where cases could be resolved by State Courts without involving determination of federal constitutional issues. Further argument of the amicus curia dealt with the fact that communications between employer and employee, as here, would occur in virtually every employment case and absent some factual allegation other than that a communication to the Superintendent was involved in the determination not to renew the contract, the question here was whether arbitrary and capricious action had been taken. The Dis-triet Court found this reasoning persuasive, as do we.
“Plaintiff contends that her amended complaint does not attack any state statute or regulation and that interpretation of the Indiana Statute will not avoid the federal constitutional question. She is willing to recognize that the defendants fully complied with the state statute but argues that this does not negative the possibility of federal constitutional violation.
“Nevertheless, as appellees assert, plaintiff may have an independent right to recover under Indiana law on issues not yet resolved by its Courts with respect to her charge that arbitrary and capricious action was taken and that false and sham reasons were given her in purported fulfillment of Indiana statutory requirements.”

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