The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 14-919
KASHA LAPOINTE
VERSUS
VERMILION PARISH SCHOOL BOARD, ET AL.
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 98078
HONORABLE JULES D. EDWARDS, III DISTRICT JUDGE
**********
BILLY HOWARD EZELL
JUDGE
**********
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.
REVERSED AND RENDERED.
Calvin Eugene Woodruff, Jr.
Cooper & Woodruff
P.O. Drawer 520
Abbeville, LA 70511
(337) 898-5777
COUNSEL FOR DEFENDANT/APPELLEE:
Vermilion Parish School Board
Brian Francis Blackwell
Blackwell and Associates
2600 Citiplace Dr., Suite 525
Baton Rouge, LA 70808
(225) 769-2462
COUNSEL FOR PLAINTIFF/APPELLANT:
Kasha Lapointe
Jimmy R. Faircloth, Jr.
Christie C. Wood
Faircloth, Melton & Keiser, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
COUNSEL FOR INTERVENOR/APPELLEE:
State of Louisiana
EZELL, Judge.
At issue in this case is whether Section 3 of Act 1 of the 2012 Regular
Session of the Louisiana Legislature as it amends La.R.S. 17:443 is
unconstitutional because it violates the due process rights of tenured public school
teachers. For the following reasons, we find that Section 3 of Act 1 does violate
the due process rights of tenured public school teachers to which they are entitled
to under the 14th Amendment to the United States Constitution and Article 1, § 2
of the Louisiana Constitution.
FACTS
Kasha LaPointe was employed by the Vermilion Parish School Board as a
teacher. She was classified as a permanent, or tenured, teacher. By a letter dated
Friday, August 16, 2013, Ms. LaPointe was informed by the superintendent of
schools, Jerome Puyau, that a hearing was to be held on Tuesday, August 20, 2013,
in his office to discuss charges of alleged willful neglect of duty and dishonesty.
The letter informed her that she would have an opportunity to respond. The
meeting was moved to August 22 in order to give Ms. LaPointe time to secure
legal counsel.
After the meeting, Ms. LaPointe was advised by a letter dated September 9,
2013, that she was terminated effective the close of business on that day. The
letter also advised her that she had seven days from receipt of the letter to apply for
a tenure review panel.
By a letter dated September 16, 2013, Ms. LaPointe advised Mr. Puyau that
she demanded a hearing with the review panel while contesting the
constitutionality of Act 1. A hearing was held before the tenure hearing panel on
October 8, 2013, where, by a vote of two to one, the panel concurred with the
decision of the superintendent to terminate Ms. LaPointe’s employment. A letter
dated October 11, 2013, informed Ms. LaPointe of this decision and advised her
that she had sixty days to seek judicial review of the decision.
Ms. LaPointe then filed a petition for judicial review on December 10, 2013,
against the Vermilion Parish School Board. She asked that Act 1 be declared
unconstitutional and that any action taken by the Vermilion Parish School Board
pursuant to Act 1 be declared null and void. She sought reinstatement and
restoration to duty as a tenured teacher and compensation of her full pay
retroactive to September 9, 2013, the date of her termination. Ms. LaPointe also
filed a petition seeking judicial review of the school board’s termination of her
employment. The trial court ordered the two suits consolidated. Since the
constitutionality of Act 1 is at issue in this case, the State of Louisiana, through the
Attorney General, intervened in the case.
A trial was held only on the constitutional issues on March 24, 2014. The
trial court found that Act 1 was both facially constitutional and constitutional as
applied to the facts of this case and dismissed Ms. LaPointe’s claims for
declaratory and injunctive relief. A judgment dismissing Ms. LaPointe’s claims
for declaratory and injunctive relief with prejudice was signed on May 5, 2014.
Ms. LaPointe then filed the present appeal arguing that the trial court erred in
failing to find that La.R.S. 17:443, as amended by Act 1, is facially
unconstitutional because it violates the due process rights of tenured public school
teachers and it is also unconstitutional in its application to her because her due
process rights were violated when she was terminated.
2
DISCUSSION
We must first address an argument raised by the State of Louisiana. On
appeal, the State argues that Ms. LaPointe’s facial constitutional challenge to
La.R.S. 17:443 was rendered moot when it was rewritten by Act 570 of 2014
which amended and reenacted La.R.S. 17:443.
In Louisiana Federation of Teachers v. State, 14-691, p. 12 (La. 10/15/14),
___ So.3d ___, ___, the supreme court recognized “that Act 570 is not retroactive
and is limited in scope to matters involving tenure and the process or proceedings
incident to the termination of employment.” The court then further recognized that
a ruling that Act 1 is unconstitutional would have procedural significance for
teachers who were terminated by Act 1 before it was amended by Act 570. The
supreme court held that Act 1 did not violate the single object requirement for
legislative bills as provided for in La.Const. art. III, § 15(A) and was not
unconstitutional on that basis. The supreme court then remanded the case to the
trial court to address the due process constitutional arguments raised by the
plaintiffs.
Based on the supreme court’s ruling in Louisiana Federation, the decision in
this case on whether Act 1 violates the due process rights of tenured public school
teachers is not moot since teachers were terminated utilizing the procedure set
forth in La.R.S. 17:443 before it was amended by Act 570. Act 1 affects teachers
who were disciplined between July 1, 2012, when Act 1 became effective, and
June 9, 2014, when Act 570 was signed by the Governor of Louisiana. Such is the
case before us concerning Ms. LaPointe’s termination, so we will now address her
arguments as to whether the procedure outlined in Act 1 violates the due process
rights of tenured public school teachers.
3
Appellate review of whether a statute is constitutional is de novo. La. Fed’n
of Teachers, ___ So.3d ___. Statutes are presumed constitutional, and the party
challenging the validity of the statute has the burden of proving its
unconstitutionality. Id. Courts must preserve the constitutionality of a statute
when it is reasonable to do so, but when a statute conflicts with the Constitution of
the United States and with the Louisiana Constitution, the statute must fall. Id.
The 14th Amendment to the United States Constitution and Article 1, §2 of
the Louisiana Constitution protect a tenured public school teacher’s right to
continued employment by requiring that certain procedural steps are followed
before the teacher is terminated. This right is a vested property right that cannot be
divested without adequate legal process. Rubin v. Lafayette Parish Sch. Bd., 93-
473 (La.App. 3 Cir. 12/14/94), 649 So.2d 1003, writ denied, 95-845 (La. 5/12/95),
654 So.2d 351. “Although a state may establish certain statutory procedural
safeguards to protect property rights, still the safeguards may be judged
insufficient (depending on the facts and circumstances of a particular case) to
guard the particular property interest at risk.” Id. at 1010.
Louisiana Revised Statutes 17:443, as amended by Act 1 of 2012 provides:
A. The school superintendent may terminate the employment of
any nontenured teacher after providing such teacher with the written
reasons therefor and providing the teacher the opportunity to respond.
The teacher shall have seven days to respond, and such response shall
be included in the teacher’s personnel file.
B. (1) A teacher with tenure shall not be removed from office
except upon written and signed charges of poor performance, willful
neglect of duty, incompetency, dishonesty, immorality, or of being a
member of or contributing to any group, organization, movement, or
corporation that is by law or injunction prohibited from operating in
the state of Louisiana, and then only if furnished with a copy of such
written charges and given the opportunity to respond. The teacher
shall have seven days to respond, and such response shall be included
in the teacher’s personnel file. At the end of this seven-day time
4
period, the superintendent may terminate the teacher’s employment. A
teacher shall not be terminated for an “ineffective” performance rating
until completion of the grievance procedure established pursuant to
R.S. 17:3883(A)(5) if a grievance was timely filed. Within seven days
after dismissal, a teacher may request and upon request shall be
granted a hearing by a panel composed of a designee of the
superintendent, a designee of the principal or the administrative head
of the state special school in which the teacher was employed, and a
designee of the teacher. In no case shall the superintendent, the
principal or state special school administrative head, or teacher
designate an immediate family member or any full-time employee of
the school system by which the teacher was employed who is under
the supervision of the person making the designation. Such hearing
may be private or public, at the option of the teacher, and shall begin
within seven business days after receipt of the teacher’s request for
such hearing. The teacher shall have the right to appear before the
tenure hearing panel with witnesses on his behalf and with counsel of
his selection, all of whom shall be heard by the panel at the hearing.
For the purpose of conducting hearings hereunder, the panel shall
have the power to issue subpoenas to compel the attendance of all
witnesses. Nothing herein contained shall impair the right to seek
supervisory review from a court of competent jurisdiction.
(2) The tenure hearing panel shall submit its recommendation to
the superintendent, and the superintendent may choose to reinstate the
teacher. If the superintendent does not reinstate the teacher, the
superintendent shall notify the teacher of his final determination, in
writing, and such teacher may, not more than sixty days from the
postmarked date of such written notification, petition a court of
competent jurisdiction to review whether the action of the
superintendent was arbitrary or capricious. The court shall have
jurisdiction to affirm or reverse the action of the superintendent in the
matter. The record on review shall be limited to evidence presented to
the tenure hearing panel, and the court shall review the matter not
later than ten days after the petition has been filed. If the action of the
superintendent is reversed by the court and the teacher is ordered
reinstated and restored to duty, the teacher shall be entitled to full pay
for any loss of time or salary he may have sustained by reason of the
action of the superintendent.
C. For the purposes of this Section, immorality shall mean any
conviction of a felony offense affecting the public morals enumerated
in Part V of Chapter 1 of Title 14 of the Louisiana Revised Statutes of
1950.
D. For purposes of this Section, the results of a teacher’s
evaluation performed pursuant R.S. 17:3881 through 3905 evaluating
the teacher’s performance as “ineffective” shall constitute sufficient
proof of poor performance, incompetence, or willful neglect of duty
5
and no additional documentation shall be required to substantiate such
charges.
Ms. LaPointe argues that the version in effect prior to Act 1 provided for a
legal hearing before the school board prior to the termination or discipline of a
tenured teacher. Ms. LaPointe argues that Act 1 has now eliminated the
requirement of any hearing before a teacher is terminated. Under La.R.S.
17:443(B)(1) as amended by Act 1, a teacher receives written notice of the reasons
for potential termination. The teacher then has seven days to respond, at which
time the superintendent may terminate the teacher. It is only after this dismissal
that a teacher may request a hearing before a panel composed of a designee of the
superintendent, a designee of the principal, and a designee of the teacher.
The Louisiana Supreme Court recognizes that “due process entitles an
employee threatened with termination to notice of the charges lodged against him,
and an opportunity to tell his side of the story before termination.” Lange v.
Orleans Levee Dist., 10-140, p. 6 (La. 11/30/10), 56 So.3d 925, 930 (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985)). In
further discussing the minimum requirements of a pre-termination hearing, the
supreme court observed that:
The purpose of the hearing is not to determine with certainty whether
termination is appropriate; instead, the hearing should have served as
“an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to believe that
the charges against the employee are true and support the proposed
action.” When a civil service employee is entitled to a full evidentiary
hearing after termination, and retroactive relief such as reinstatement
is available, pre-termination due process is satisfied by notice and an
opportunity to respond. In other words, only the barest of a pre-
termination procedure is required when an elaborate post-termination
procedure is provided.
Id. at 930-31 (quoting Loudermill, 105 S.Ct. at 1495)(citations omitted).
6
We find that the overall scheme of Section 3 of Act 1 of 2012 as it amends
and reenacts La.R.S. 17:443 is unconstitutional as it deprives a tenured public
school teacher adequate due process before he or she is terminated. Pursuant to
Act 1, only one person, the superintendent, makes the decision to terminate, the
superintendent. While the teacher is allowed to oppose the charges brought by the
superintendent, it is only after termination that a tenured teacher is allowed to
submit her case, including witnesses, to a panel. While it would seem that a
teacher receives due process at this post-termination proceeding because she is
entitled to a full evidentiary hearing, we find that this is not the case.
We further find that any tenure hearing panel is also weighted against the
teacher as it made up of three people, two of whom are selected by the parties
responsible for the teacher’s termination. i.e., the superintendent who made the
decision to actually terminate the teacher and the principal who probably made the
request for termination in the first place. Furthermore, the tenure hearing panel can
submit only a recommendation to the superintendent after the hearing. Even if the
panel suggests reinstatement, the superintendent is not required to reinstate the
teacher, thereby leaving the teacher’s fate in the hands of one person, the
superintendent. The teacher can seek further review in a trial court. However, the
trial court can reverse the decision of the superintendent only if it was arbitrary and
capricious.
With this type of process in place, the superintendent is the only decision
maker. Once the superintendent has decided to terminate a teacher without a full
hearing, it is almost impossible that a teacher will be reinstated. This renders the
post-termination procedure meaningless. Therefore, a pre-termination procedure
in which an employee can only respond to allegations with no hearing does not
7
provide any meaningful opportunity for a teacher to defend her job. This is not
adequate due process under the 14th Amendment to the United States Constitution
and Article I, § 2 of the Louisiana Constitution. We find that Section 3 of Act 1 of
2012 that amends and reenacts La.R.S. 17:443(B) is unconstitutional as it denies
all tenured public school teachers the due process to which they are entitled.
Since we find that La.R.S. 17:443(B) as amended in 2012 is unconstitutional,
we further find that the termination of Ms. LaPointe was pursuant to a procedure
that was “void from its inception and of no legal effect.” La. Fed’n of Teachers,
____ So.3d at ___. Therefore, Ms. LaPointe is entitled to reinstatement and her
full pay and any other benefits to which she would have been entitled had she not
been terminated. Due to this ruling, there is no need for us to address Ms.
LaPointe’s arguments concerning the constitutionality of Section 3 of Act of 2012
that amends and reenacts La.R.S. 17:443(B) in its application to her by the
Vermilion Parish School Board.
The Vermilion Parish School Board is hereby ordered to reinstate Kasha
LaPointe to the position of teacher with tenure at her former employment level
with all back pay from September 9, 2013, together with all other benefits she
would have been entitled but for the improper termination. All costs below and on
appeal, in the amount of $5,954.56, are assessed equally against the Vermilion
Parish School Board and the State of Louisiana.
REVERSED AND RENDERED.
8