On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
The motion of respondent for leave to proceed in forma pauperis
is granted. The petition for a writ of certiorari is denied.
Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins,
dissenting.
Respondent, a nontenured public school teacher, was dismissed
from her job in May 1975, following months of disagreement and
dissension with her supervisors. The situation came to a head about
six weeks before her dismissal. An informal conference was arranged
and respondent, accompanied by her counsel, met with several school
administrators to discuss her performance as a teacher. Although
the meeting lasted for some time, it was confined primarily to an
extensive cross-examination by respondent's counsel of the school
administrators. The meeting was terminated inconclusively because
respondent's counsel insisted upon a " specific written statement
of charges" as a precondition of his client's full participation in
the meeting and "never allowed her to speak." *
______--- * Dr. Robinson, one of the defendants, took notes of
the meeting. His record of the events leading to the adjournment of
the meeting was as follows: "Mr. Ditowsky [counsel for Miss
Berger]: Again, Dr. Robinson, I respectfully submit that since we
do not have a specific written statement of charges, and
furthermore, since the nature of some of these charges are
components of a Court suit we already have against the Board of
Education, I do not feel that my client's participation in this
meeting is proper . . . . "Dr. Robinson : Mr. Ditowsky, will you
allow your client to respond to any of the reported activities[?]
"Mr. Ditowsky : Yes, I will allow her to respond, but only for the
sake of accommodation. Further, I would like the record to show
that there should be a Court reporter present, and the charges
should be made specifically in writing. "(At this point the matter
of impersonating a parent was discussed at great length. It turned
into an extensive cross-examination by Mr. Ditowsky
Page 439 U.S.
992 , 993
After conferring among themselves, the administrators,
petitioners here, decided that the problems arising from
respondent's conduct were sufficiently severe to merit an immediate
recommendation of dismissal to the Board of Education. Their report
to the Board referred to over 90 memos respondent had written to
her principals during the past year about urgent problems with her
students, emergencies which upon investigation were determined to
be nonexistent or exaggerated; over
Page 439 U.S.
992 , 994
60 telephone calls to principals and parents, the majority of
which were threatening and harassing; and five incidents in which
she had called the police into her classroom without cause and in
violation of school policy. The report mentioned one incident where
respondent had impersonated a parent and threatened other parents
with a lawsuit. Following petitioners' recommendation, the Board
discharged respondent for insubordination and conduct unbecoming a
teacher.
Respondent filed an action under 42 U.S.C. 1983 in the United
States District Court for the Northern District of Illinois,
accusing petitioners of having engaged in a malicious conspiracy to
violate her rights under, inter alia, the First, Fourth, Fifth,
Sixth, Eighth, Thirteenth, and Fourteenth Amendments. The District
Court granted summary judgment for petitioners, ruling that "there
is no genuine issue of fact to be submitted to the trier of fact"
and concluding that petitioners "are entitled to a judgment as a
matter of law." On appeal, the Seventh Circuit reversed. It
perceived that the case turned on whether respondent had been
deprived of a property or liberty interest without due process of
law, and it found disputed issues of fact on this question.
Respondent might be able to prove either that she had a property
right to serve out the balance of her contract term or that the
public dissemination of the charges against her created a stigma
that infringed a protected liberty interest. Judge Pell
dissented.
I would grant the petition for certiorari and summarily reverse.
Even if respondent were able to prove the existence of a
constitutionally protected property or liberty interest, it seems
clear that the procedural requirements of the Due Process Clause
were met on the facts of this case. Judge Pell appears to have been
correct in observing,
"It needs no reading between the lines of the record presented
to us to discern that the [petitioners], exercising their functions
of operating the school system, terminated a non-tenured teacher
who was seriously detrimental to
Page 439 U.S.
992 , 995
the proper accomplishment of the educational aims of the
school."
With respect to the procedures followed here, Judge Pell
noted,
"[T]his non-tenured teacher received the due process to which
she was entitled by virtue of her status. She was given a meeting
with school authorities who were willing to discuss with her and
her attorney the difficulties which she was causing in the school
where she was purporting to teach. The attorney's tactics on that
occasion subverted the effort."
Our decisions in Board of Curators v. Horowitz,
435 U.S. 78 (1978); Goss
v. Lopez,
419 U.S.
565 (1975); and Cafeteria Workers v. McElroy,
367 U.S. 886, 81 S. Ct.
1743 (1961), have emphasized that the requirements of due process
are flexible, varying according to the situation involved and
interests implicated. It is abundantly clear that respondent and
her supervisory authorities had been in a state of tension and
disagreement for a period of months, and that respondent had full
notice of the dissatisfaction with her performance. Finally,
respondent was afforded a hearing with the appropriate school
administrators at which she had the opportunity, with counsel
present, to submit her views. It was at the instruction of her
counsel that respondent did not speak in her own defense on this
occasion. In sum, respondent received all process that she was due.
See Board of Curators v. Horowitz, supra, 435 U.S. at 85; Goss v.
Lopez, supra, 419 U.S. at 582.
Footnotes
of Miss O'Shea and Mrs. Berg [principals under whom Miss Berger
served]. Neither Miss O'Shea nor Mrs. Berg were prepared with
supportive documentation nor were they prepared to undergo an
extensive cross- examination. This cross-examination went on for
twenty to thirty minutes, and it appeared that Mr. Ditowsky was
taking advantage of the principals. Occasionally Miss Berger tried
to volunteer some information, but Mr. Ditowsky never allowed her
to speak. It took about thirty minutes to cover one reported
activity, when Mrs. Whitten [counsel for the school board]
intervened.)
"Mrs. Whitten : Perhaps we should
postpone this meeting to at time when we can supply you with a
specific statement of charges and a time when the line
administrators could have their supportive documentation available
to them.
"Mr. Ditowsky : We would be agreeable
to this.
"Dr. Robinson : We will have to
investigate with our Law Department as to whether or not under the
State Statute it would be necessary for us to provide you with a
written statement of charges which can be reviewed by you prior to
any action by our Board of Education. You will be notified."
The Law Department advised petitioners that another meeting was
not necessary. Instead, counsel for respondent was invited to
review the documentation of Miss Berger's misconduct which the
principals had compiled.
Respondent did not dispute the version of these events, but
rather adopted it in her own pleadings. These notes provided
substantial support for Dr. Robinson's statement, contained in an
answer to one of respondent's interrogatories, that "The entire
purpose of the conference, which was to give Miss Berger an
opportunity to respond to the allegations, was thwarted by her
attorney, who would not allow her to respond." Respondent did not
controvert this statement by any counter-affidavit.
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