Opposition — Webster v. Board of Education

IN THE

Supreme Court of the United HES au, im.

OCTOBER TERM, 1979 nomad

No. 79-765

DOUGLAS WARREN WEBSTER,

Petitioner,

VS.

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

A BODY CORPORATE AND POLITIC; WARREN H. BACON,

INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCA-

TION OF THE CITY OF CHICAGO; MRS. DAVID CERDA, 1n-

DIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY Of CHICAGO; BERNARD S. FRIEDMAN, In-

DIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY OF CHICAGO; MRS. LOUIS A. MALIS, 1n-

DIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY OF CHICAGO; THOMAS J. NAYDER, INpI-

VIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY OF CHICAGO; MRS. CAREY B. PRESTON,

INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCA-

TION OF THE CITY OF CHICAGO; MRS. WILLIAM L.

ROHTER, INDIVIDUALLY AND AS A MEMBER OF THE BOARD

OF EDUCATION OF THE CITY OF CHICAGO; AND MRS. W.

LYDON WILD, INDIVIDUALLY AND AS A MEMBER OF THE

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

Respondents.

DECIDED IN THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, NOS. 78-1978, 78-2032.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI AND OBJECTIONS TO MOTION FOR

LEAVE TO FILE BRIEF AMICUS CURIAE.

MICHAEL J. MURRAY,

ROBERT J. KRAJCIR,

PATRICIA J. WHITTEN,

228 North LaSalle Street,

Chicago, Illinois 60601

(312) 641-3900

Attorneys for Respondents.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

TABLE OF CONTENTS.

PAGE

CER DRED DSER CSch ba toccccertecccses ii

Table of Statutes and Other Authorities............... iii

COMCSTION PPCSCMIOG TOF FROVICW. . 2... ccc ccc ec cccccces 2

UGA Shek s ess sesteeeees 2

EE ee 9

CRC CRG E GES spe ee es eens sccscees 14

I. Webster Did Not Have a Constitutionally Pro-

tected Entitlement to Appointment to a Prin-

EE ee 14

ES eRe eee 14

A. Illinois Law Does Not Confer a Property

Right Prior to Appointment to a Princi-

i ee eee 16

B. The Illinois Appellate Court Decision in

Maiter v. Chicago Board of Education Is

Not Dispositive of the Issue Involved in

GEES bps :6 + 60000: 06 0 22

Il. The Doctrine of Abstention Is Inapplicable.... 30

III. The Board of Education’s Consideration of

Events and Circumstances Resulting in Criminal

Proceedings Against a Candidate for Principal-

ship Is Appropriate in Its Determination of That

Person’s Fitness for the Position............. 32

go) Ge a a 34

Objections to Motion for Leave to File Brief Amicus

Curiae in Support of Petition for Writ of Certiorari. . . l

ii

Table of Cases.

Baggett v. Bullitt, 377 U. S. 360, 84 S. Ct. 1316 (1964).. 31

Bishop v. Wood, 426 U. S. 341, 96 S. Ct. 2074 (1976). .14, 15

Board of Education v. Johnson, 21 Ill. App. 3d 482, 315

ee) ee eee er ere ea a 19

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2074

EGMUME cohen ee cates viv cbubes teeta eeneen 14, 15, 29

Board of Education v. Rockford Education Association,

3 Ill. App. 3d 1090, 280 N. E. 2d 286 (1972)....... 19

Board of Trustees v. Cook County Teachers Union, 62

Ill. 2d 470, 343 N. E. 2d 473 (1976)........ecee0. 19

Courtney v. Board of Education, 6 Ill. App. 3d 424, 286

Pes Oe ED a Ca ihe bho vap edees bd EYES 27, 28

Doud v. Hodge, 350 U. S. 485, 76 S. Ct. 491 (1956)... 30

Elder v. Board of Education, 60 Ill. App. 2d 56, 208 N. E.

oe A ee errr or rs Perr eer re 19

Favorite v. Board of Education of Chicago, 235 Ill. 314,

ee Se fe eo nee ere ee 19

Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S.

oe ee ee ee 31

Illinois Education Association v. Board of Education, 62

as 20 827, DOO TB. 8 7 C1975). vtiviec cticees 19

Lindblad v. Board of Education, 221 Ill. 261, 77 N.E.

Oe iy ee ene err rer 19

Lockport Area Special Education Cooperative v. Lockport

Area Special Education Cooperative Association, 33 III.

App. 3d 789, 338 N. E. 2d 463 (1975)............ 19

Maiter v. Chicago Board of Education, No. 77-423 (lst

a eo Pee OP TOT Tee 22-24, 27-31

iii

Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7

CROES Wh 50.0 03 ve ereduiewa cid pics se hes 6k e 6 6a meee 30, 31

People ex rel. Cook v. Board of Education, 295 Ill. App.

oe se ee FB | es cerrerene 25

People ex rel. Laist v. Lower, 251 Ill. 527, 96 N. E. 346

ty re eee ree ra re ere 26

People ex rel. Latimer v. Board of Education, 341 Ill. App.

TO, DS Ph. Mis Oe SOO CODOO s bcc ctv cccevessecs 26

People ex rel. Thomas v. Board of Education, 40 Ill. App.

20 SUG, 166 N. B. 26 297 CI9GS). cv ccccrecvcens 21

Perry v. Sindermann, 408 U. S. 593, 92 S. Ct. 2694 (1972)

PETE eT ee TRE COT eT TOC aE COE eee 14, 15

Richards v. Board of Education, 21 Ill. 2d 104, 171 N. E.

et. eee ere ee eee ee 19, 20, 25

Siler v. Louisville & N. R. Co., 213 U.S. 175, 29 S. Ct.

M.S ee Cena re 30

Stroh v. Casner, 201 Ill. App. 281 (1916)............ 19

Webster v. Redmond, 443 F. Supp. 670 (N.D. Ill. 1977) 10

Webster v. Redmond, 599 F.2d 793 (7th Cir. 1979)

See ene ee oe a ok aed Cw kee ek ae 12, 28-30, 33

Wesclin Education Association v. Board of Education, 30

Ill. App. 3d 67, 331 N. E. 2d 335 (1975).......... 19

Wilson v. Board of Education of Chicago, 233 Ill. 464,

5 8 YY i | eee rere rere ree ea ee 19

Table of Statutes ard Other Authorities.

United States Constitution, Fourth Amendment........ Obj. 2

Title 42, United States Code, § 1983................ 2

EL, Bev, Dint. (IP T7), Gs: Rady § BEES og vc ccreyeccess 26

Ill. Rev. Stat. (1977), ch. 122, § 34-8 ......... 16, 17, 19, 20

iV

Ill. Rev, Stat. (1977), ch. 122, § 34-8.1........... 16, 17, 19

Ill. Rev. Stat. (1977), ch. 122, § 34-8.2........ 16, 17, 23, 28

Ill. Rev. Stat. (1977), ch. 122, § 34-18 ............... 16

Ill. Rev. Stat. (1977), ch. 122, § 34-83 ........... 12, 23, 25

Hl. Rev, Stat. (1977), cM. 122, § SOO ccc sc cesccenss:

teheeeuees ee Oe ae ee ha anne 16, 17, 21, 23, 27, 28, 30

Ill. Rev, Stat. (1977), ch. 122, § 34-85 ...... 16, 18, 20, 21, 27

Civil Service in Parks Act, Ill. Rev. Stat. (1977), ch. 24%,

TUS 2 | My re er es Se 24

Park Employees’ and Retirement Board Employees’ An-

nuity and Benefit Fund Systems Act, Ill. Rev. Stat.

(1977), om. S04, BF TSS ie kc eee 24

University Civil Service Systems Act, Ill. Rev. Stat. (1977),

ch. 12494, § SUBIR). «> keane ea eee 24

Board of Fire and Police Commissioners Act, Ill. Rev.

Stat. (1977), ch. 24, § 10.2.1-1 ef seq. ............ 24

Chicago Sanitary District Act, Ill. Rev. Stat. (1977), ch.

42, §§ S25 60 OM asks wees eee 24

Civil Service in Cities Act, Ill. Rev. Stat. (1977), ch. 24,

68 10-1<] GF A vated cee eee eee 24

Otis Law (Laws 1917, O. Tio) i csnvvies dvacdvaeeaee 24

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

No. 79-765.

DOUGLAS WARREN WEBSTER,

Petitioner,

VS,

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

A BODY CORPORATE AND POLITIC; WARREN H. BACON,

INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCA-

TION OF THE CITY OF CHICAGO; MRS. DAVID CERDA, In-

DIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY Of CHICAGO; BERNARD ». FRIEDMAN, In-

DIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY OF CHICAGO; MRS. LOUIS A. MALIS, In-

DIViDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY OF CHICAGO; THOMAS J. NAYDER, INDI-

VIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCATION

OF THE CITY OF CHICAGO; MRS. CAREY B. PRESTON,

INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF EDUCA-

TION OF THE CITY OF CHICAGO; MRS. WILLIAM L.

ROHTER, INDIVIDUALLY AND AS A MEMBER OF THE BOARD

OF EDUCATION OF THE CITY OF CHICAGO; AND MRS. W.

LYDON WILD, INDIVIDUALLY AND AS A MEMBER OF THE

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

Respondents.

DECIDED IN THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, NOS. 78-1978, 78-2032.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI AND OBJECTIONS TO MOTION FOR

LEAVE TO FILE BRIEF AMICUS CURIAE.

QUESTION PRESENTED FOR REVIEW.

Did Petitioner have a property right to be promoted to the

principalship in question under state law which would require

the Chicago Board of Education to afford him due process pro-

tections regarding its decision not to appoint him a principal?’

STATUTES CONSTRUED.

Illinois School Code, Ill. Rev. Stat. (1977), ch. 122:

§ 21-23

§ 21-23. Suspension or revocation of certificate. Any

certificate issued pursuant to this Article may be suspended

for a period not to exceed one calendar year by either the

regional superintendent or State Superintendent of Educa-

tion upon evidence of immorality, a condition of health

detrimental to the welfare of pupils, incompetency, un-

professional conduct, the neglect of any professional duty

or other just cause. Unprofessional conduct shall include

refusal to attend or participate in, institutes, teachers’

meetings, professional readings, or to meet other reason-

able requirements of the regional superintendent or State

Superintendent of Education. It shall also include neglect

Or unnecessary delay in making of statistical and other

reports required by school officers. The regional superin-

tendent or State Superintendent of Education shall upon

1. Additional, substantial grounds which would have required

reversal of the judgment in petitioner’s favor were not addressed by

the Court of Appeals in light of its treatment of the case; e.g., the

Board members having acted in good faith, they and the Board are

immune from liability under 42 U.S.C. § 1983; a hearing was not

required since material facts were not disputed by petitioner; award-

ing petitioner additional “compensatory damages” absent proof of

any injury therefor was contrary to law.

3

receipt of evidence of immorality, a condition of health

detrimental to the welfare of pupils, incompetency, un-

professional conduct, the neglect of any professional duty

or other just cause serve written notice to the individual

and afford the individual opportunity for a hearing prior

to suspension. If a hearing is requested within 10 days of

notice of opportunity for hearing it shall act as a stay of

proceedings not to exceed 30 days. No certificate shall be

suspended until the teacher has an opportunity for a hear-

ing at the educational service region. When a certificate is

suspended, the right of appeal shall lie to the State Teacher

Certification Board. When an appeal is taken within 10

days after notice of suspension it shall act as a stay of

proceedings not to exceed 60 days. Any certificate may be

revoked for the same reasons as for suspension by the

State Superintendent of Education. No certificate shall

be revoked until the teacher has an opportunity for a

hearing before the State Teacher Certification Board,

which hearing must be held within 60 days from the date

the appeal is taken.

§ 34-8

§ 34-8. Powers and duties of general superintendent.

The general superintendent of schools shall prescribe and

control, subject to the approval of the board, the courses

of study, textbooks, educational apparatus and equipment,

discipline in and conduct of the schools, and shall perform

such other duties as the board may by rule prescribe.

Appointments, promotions and transfers of teachers, prin-

cipals, assistant and district superintendents and all other

employees in the teaching force shall be made, sites shall

be selected, schoolhouses located thereon and plans there-

for approved, and textbooks and educational apparatus

and equipment shall be adopted and purchased by

the board only upon the recommendation of the general

superintendent of schools or by a majority vote of the full

4

membership of the board and, in the case of textbooks,

subject to Article 28 of this Act. The board may furnish

free textbooks to pupils and may publish its own textbooks

and manufacture its own apparatus, equipment and sup-

plies.

§ 34-8.1

§ 34-8.1. Principals. Principals shall be employed to

supervise the educational operation of attendance centers

as the board shall determine necessary. Each principal shall

assume administrative responsibility and instructional lead-

ership, under the supervision of the generai superintendent

and in accordance with reasonable rules and regulations

of the board, for the planning, operation and evaluation

of the educational program of the attendance area to which

he is assigned. He shall submit recommendations to the

general superintendent concerning the appointment, re-

tention, promotion and assignment of all educational per-

sonnel assigned to the attendance center.

Each principal shall hold a valid supervisory or ad-

ministrative certificate issued by the board of education in

accordance with standards established by the general super-

intendent with the approval of the board of education.

§ 34-8.2

§ 34-8.2. Local Nominating Committees. A. Before the

general superintendent shall recommend or the board shall

vote on the appointment of a principal, the general super-

intendent and board may obtain the nomination of a per-

son or persons to fill the position of principal by a local

nominating committee.

B. A local nominating committee, when authorized by

board rules and regulations, may consider, interview and

nominate only those persons for the position of principal

who appear on the appropriate eligibility list prepared by

the board of examiners or those principals who consent

5

to be considered for a transfer. The recommendations of

the local nominating committee shall not discriminate

against any person based upon race, color, creed, national

ancestry, sex, ethnic heritage or religious beliefs.

C. The board may adopt rules and regulations regard-

ing the formation of and procedures to be followed by local

nominating committees; these rules and regulations shall

assure that at least 60% of the members of each committee

shall be parents or guardians of children in the affected

school.

§ 34-18

§ 34-18. Powers of the board. The board shall exercise

general supervision and management of the public educa-

tion and the public school system of the city, and shall have

power:

* * *

8. Subject to the limitations in this Article, to prescribe

the course and methods of study in the various schools and

employ teachers and other educational employees and fix

their compensation... .

§ 34-83

§ 34-83. Board of examiners—Certificates—Examina-

tions. A board of 3 examiners shall examine all applicants

required to hold certificates to teach and the board of

education shall issue gratuitously to those who pass a re-

quired test of character, scholarship and general fitness,

such certificates to teach as they are found entitled to re-

ceive. The board of examiners shall consist of the general

superintendent of schools and 2 persons approved and

appointed by the board of education upon the nomination

of the general superintendent of schools. The board of

examiners shall hold such examinations as the board of

education may prescribe, upon the recommendation of the

general superintendent of schools and shall prepare all

necessary eligible lists, which shall be kept in the office of

6

the general superintendent of schools and be open to public

inspection, Members of the board of examiners shall hold

office for a term of 2 years.

§ 34-84

§ 34-84. Appointments and promotions. Appointments

and promotions of teachers, principals and other educa-

tional employees shall be made for merit only, and after

satisfactory service for a probationary period of 3 years

(during which period the board may dismiss or discharge

any such probationary employee upon the recommendation,

accompanied by the written reasons therefor, of the gen-

eral superintendent of schools) appointments of teachers

and principals shall become permanent, subject to: (1)

termination by compulsory retirement at the age of 65

years; (2) the rules of the board concerning conduct and

efficiency; and (3) removal for cause in the manner pro-

vided by Section 34-85.

When any teacher or principal who has been promoted

to the position of assistant or district superintendent or a

member of the board of examiners is relieved of the duties

of such position, he shall be reinstated in the position from

which he was promoted.

“Teachers and principals” as used in this article means

all members of the teaching force except the general super-

intendent of schools, assistant and district superintendents

and members of the board of examiners.

§ 34-85

34-85. Removal for cause—Notice and hearing—

Suspension. No teacher or principal appointed by the board

of education shall (after serving the probationary period

of 3 years specified in Section 34-84) be removed except

for cause, and then only by a vote of a majority of all

members of the board, upon written charges presented by

the general superintendent of schools, to be heard by the

7

board or a duly authorized committee thereof. Written

notice of such charges shall be served upon the teacher or

principal not less than 20 nor more than 30 days before

the date of hearing. If the employee cannot be found upon

diligent inquiry, such notice and charges may be served

upon him by mailing a copy thereof in a sealed envelope

by prepaid certified mail, return receipt requested, to the

employee’s last known address. A return receipt showing

delivery to such address at least 30 days prior to the date

set for hearing shall constitute proof of service. The hear-

ing shall be held and the decision rendered within 80 days

from the date of service of the notice; provided however,

that continuances of said hearing granted at the request

of the teacher or principal shall not be included in com-

puting this 80 day period. The hearing shall be public at

the request of either the teacher or principal or the board.

The teacher or principal shall have the privilege of being

present at the hearing, together with counsel, offering evi-

dence and making defense to the charges. Before service of

notice of charges on account of causes that may be deemed

to be remediable, the teacher or principal shall be given

reasonable warning in writing, stating specifically the

causes which, if not removed, may result in charges. The

action and decision of the board as to the existence of

reasons or causes for dismissal or removal shall be final

unless reviewed as provided in Section 34-85b of this Act.

Pending the hearing of the charges, the person charged

may be suspended in accordance with rules prescribed by

the board but such person, if acquitted, shall not suffer any

loss of salary by reason of the suspension.”

2. This section was substantially modified by Public Act

80-1308, effective August 7, 1978 to include a new hearing

procedure; however, the provision that “no teacher or principal

appointed by the board of education shall (after serving the

probationary period of 3 years specified in Section 34-84) be

removed except for cause” has been retained.

8

No principal appointed by the board of education shall

after serving the probationary period of 3 years specified

in Section 34-84 be reclassified to a lower position or

administrative grade on his or her principal’s certificate

unless reasonable advance notice is given in writing of the

proposed reclassification. The term “reclassify” means a

demotion or reduction in rank from one position to an-

other for which a lower salary is paid.

Within 10 days of receipt of such notice, the principal

may request and receive a private hearing with the board

to discuss the reasons for the proposed reclassification. If

the principal is not satisfied with the results of the private

hearing, he or she may, within 5 days thereafter, request

and receive a public hearing on the proposed reclassifica-

tion. The principal may be represented by counsel at any

private hearing or public hearing conducted under this

Section. If the board decides to proceed with the proposed

reclassification, it shall give the principal written notice of

its decision within 15 days of the private hearing or within

15 days of the public hearing held under this Section,

whichever is later. The decision of the board thereupon

becomes final.

Nothing in this Section prohibits a board from ordering

lateral transfers of principals to positions of similar rank

and equal salary.

STATEMENT OF FACTS.

Petitioner’s statement of the facts of this case is deficient.

Some of the significant deficiencies are as follows:

Petitioner relates that the attorney for the Board of Educa-

tion, who was present during the executive session of that

Board, “. . . told the Board that Webster had gotten off (the

criminal charge) on a ‘technicality’.” (P. 9)* No such finding

of fact was made and the record simply does not support that

statement.

Douglas Warren Webster, plaintiff, is presently employed by

the Board of Education of the City of Chicago, hereinafter

sometimes referred to as “Board,” as an elementary school teach-

er at the Whittier School. On January 23, 1971, plaintiff was

arre: ed on a state charge of theft. There had been an armed

robbery of the Eizcksonn Company, a jewelry store, on January

15, 1971. A police investigator conducted an investigation of

that robbery. On January 23, 1971, he interviewed Johnnie

Flournoy and obtained certain information concerning the par-

ticipants in the jewelry store robbery and the disposition of the

stolen property. Flournoy admitted that he had participated in

the planning, execution and disposal of the property taken

in the robbery. He implicated others as having participated,

which included Raymond Daniels. Flournoy related that he and

Daniels contacted a person that Daniels knew by the name of

Weber and met with Weber the same night as the robbery for

disposal of the stolen property. Flournoy furnished Weber’s

telephone number, which was unlisted, but it was subsequently

learned to be the telephone number of Douglas Webster, 6501

South Crandon, Apartment 17A, Chicago, Illinois, the home

address of plaintiff.

3. “P.” refers to the Petition for Writ of Certiorari filed with

this Court.

10

‘At the time of his arrest, the police searched plaintiff's apart-

ment. As a result of that search the police seized certain rings

which had been found in plaintiff's clothes. One of the rings was

highly identifiable. It was identified by the police as having been

taken in the robbery since it was the jewelry store owner’s per-

sonal wedding band which had been personally made by him.

It was found in plaintiffs coat in a small manila envelope, to-

gether with another ring, which envelope type is commonly

used in the jewelry business. There was writing on the front of

the envelope which read: “Tony, clean and file prongs.” A com-

parison of plaintiffs explanation regarding his possession of

that stolen ring at the time of his arrest and the testimony of

Raymond Daniels, the person from whom he says he received

the ring, reveals its total lack of credibility.

While the trial court made no specific findings as to his ex-

planation for his possession of the stolen ring, the trial court’s

statement that plaintiff had a “. . . brief brush with crime. . .”

reinforces the conclusion that his explanation was indeed deemed

by the trial court to be contrived and incredulous. Webster, 443

F. Supp. at 677 (P. 11a).

In addition, the trial court related that plaintiff had “. . . filed

a motion to suppress the evidence against him on the ground

that it had been taken from his home by an unconstitutional

search. The motion was heard, and a judge ruled that the evi-

dence the state was going to use against Webster had been taken

from his home by an unreasonable search and seizure in viola-

tion of his constitutional rights.”” (Emphasis added.)

The record, in addition, reveals the trial court’s following

findings of fact:

* * + * *

“12. Prior to this, (the executive session of the Board

held on January 14, 1972) on January 13, 1972, the at-

torney for the Board received a memorandum from the

Assistant Attorney detailing plaintiffs arrest on January

23, 1971 for the offense of receiving property which had

11

been taken in an armed robbery of the Erichsonn (sic)

Company jewelry store at 10 South Wabash Avenue in the

City of Chicago on January 15, 1971. The memorandum,

consisting of 13 typewritten pages, reviewed the details of

that arrest, the return of the indictment, the motion to

suppress evidence, the newspaper reactions to the events

of January 23, 1971, and summarized the entire subject

of the incident involving plaintiff, and which had led to

his suspension as a teacher.

“At the time this memorandum was received, there was

in the files of the attorney for the Board, a certified copy

of the indictment that had been returned against plaintiff,

a copy of a 73-page transcript of the proceedings before

Judge Wilson on March 5, 1971, and various communica-

tions and memoranda to the Deputy Superintendent of

Schools from the Chief of Security of the Board of Educa-

tion, concerning plaintiff's arrest.

“The office of the attorney for the Board also had a

complete file of the incidents that occurred between plain-

tiffs arrest on January 23, 1971 and his reinstatement as a

teacher on August 26, 1971, including the inability of the

personnel division of the Board in obtaining testimony of

witnesses necessary to proceed with disciplinary action

against plaintiff for conduct unbecoming a teacher, a

charge brought about by his arrest, indictment and pro-

ceedings in the Criminal Division of the Circuit Court of

Cook County

* 1K - a 4

“14. After the Deputy Superintendent referred to plain-

tiffs arrest, and the incidents in connection therewith, the

attorney for the Board supplemented the references. Either

at the time he started, or by the time he finished speaking,

he assured members of the Board that his office had in its

files the documents necessary to support what the Deputy

Superintendent had stated and what he had supplemented

with his remarks.”

* * ~ * *

There were no allegations in any of plaintiff's four complaints

that the information upon which a majority of the Bocr! relied

12

in voting against his promotion to principal was, in fact, false.

The third and last amended complaint was filed after substan-

tial discovery was taken by plaintiff and after the entry of an

extensive and substantial stipulation of facts between the parties,

all of which considered together revealed the totality of the in-

formation available to the Board relating to Webster.

Nor were there any allegations in any of the complaints filed

that a hearing, or any other due process guarantees, were re-

quired of the Board of Examiners. Neither the Board of Exam-

iners nor any of its individual members were made parties.* In

that regard the trial court found:

“Plaintiff still holds this certificate and is on the principals’

eligibility list maintained by the Board of Education. His

certificate has never been questioned; and his right to hold

that certificate has not been adversely affected by any

action or ruling of the Board of Education, or any of its

subsidiary agencies.”

Webster, 599 F. 2d at 799 (P. 24a).

While the trial court related that “. . . Webster was denied

the promotion only because he was once arrested, indicted for

a felony, but never convicted” and plaintiff likewise so asserts,

such was not the case (P. 4a and 9, respectively). The Court

of Appeals found from the record that:

“Rather, the fact of and circumstances surrounding the

arrest and indictment were taken into consideration by the

Board, At any rate, there would seem to be a difference

between an absolute disqualification based on the mere

fact of arrest and consideration of events and circum-

stances leading up to and surrounding an arrest and sub-

sequent indictment, Since presumably such events and cir-

cumstances in and of themselves could be considered if

they had not eventuated in an arrest and indictment, the

occurrence of an arrest does not itself render such consider-

ation impermissible.” (Footnote) Thus, for example, the

4. The General Superintendent of Schools was named a de-

fendant; while he is also Chairman of the three-member Board of

Examiners, he was not named defendant in that capacity. (Chapter

122, Section 34-83, Illinois Revised Statutes, 1977.)

13

fact that stolen property was found in Webster’s possession

would remain the same whether he was arrested or not.

And the probativeness of this fact remains the same re-

gardless of its exclusion from evidence in a criminal pro-

ceeding for Fourth Amendment policy reasons. (Emphasis

supplied. )

Webster, 599 F. 2d at 802.

The material facts revealed to the Board by its administrators

and attorney, and upon which its members relied, were essentially

matters of public record or gleaned from other records of public

agencies, and were undisputed by plaintiff.

14

ARGUMENT.

I,

WEBSTER DID NOT HAVE A_ CONSTITUTIONALLY

PROTECTED ENTITLEMENT TO APPOINTMENT TO A

PRINCIPALSHIP.

Introduction.

This case involves a claim of denial of due process by a

person who was declared eligible for a principal's position by

virtue of the award of a certificate which is a prerequisite to

any appointment to such position in the Chicago public school

system. Webster claims that he has a valuable property right

in his principal’s certificate and that he is entitled to appoint-

ment to a principalship in the Chicago public school system.

Having a principal’s certificate, which merely makes a person

elizible for appointment as a Chicago school principal, clearly

does not constitute a recognizable property interest under Illi-

nois law, and Webster did not have an entitlement to such

position prior to appointment, as the Seventh Circuit Court

of Appeals correctly held. The petition for writ of certiorari

represents an attempt to substantially expand and distort the

well-established holdings of this Court with regard to property

interests in an employment context already clearly defined in

Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2074

(1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694

(1972); and Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074

(1976). These cases involved claims of rights to continued

employment, rather than the hopes and expectations of promo-

tion to a higher position as are present in this case. Property

interests are defined in Roth as follows:

“Property interests, of course, are not created by the Con-

stitution, Rather, they are created and their dimensions are

15

defined by existing rules or understandings that stem from

an independent source such as state law—trules or under-

standings that secure certain benefits and that support

claims of entitlement to those benefits.” 408 U. S. at p. 577.

In Sindermann the Court further defined a property right in

employment as follows:

“A person’s interest in a benefit 1s a ‘property’ interest for

due process purposes if there are such rules or mutually

explicit understandings that support his claim of entitle-

ment to the benefit and that he may invoke at a hearing.”

408 U.S. at 601.

Finally, in Bishop v. Wood, the Court reaffirmed the factors to

be considered in the determination of such a right:

“A property interest in employment can, of course, be

created by ordinance, or by an implied contract. In either

case, however, the sufficiency of the claim of entitlement

must be decided by reference to state law.” 426 U.S.

at 344.

It is clear that the law of Illinois does not recognize the

hopes and expectations of a promotion to a higher position as

a property interest, nor does it recognize an entitlement to a

principalship (or to any other employment within the school

system) prior to actual appointment. Judge Philip W. Tone,

then of the United States District Court, correctly concluded

that “[t]he expectation or hope of a promotion is not a prop-

erty right . . .” in denying Webster’s motion for a preliminary

injunction in this case. Therefore, his failure to receive an ap-

pointment as a principal is not protected by the due process

clause of the Fourteenth Amendment (Board of Regents v.

Roth, 408 U.S. at 577). Applicable portions of the Illinois

School Code (Ill. Rev. Stat., ch. 122) which deal with prin-

cipalships do not indicate that Webster has any such property

right under state law. The Court of Appeals for the Seventh

Circuit correctly interpreted the applicable state law in this case,

consistent with this Court’s holdings in the Roth, Sindermann

and Bishop cases.

16

A. Illinois Law Does Not Confer a Property Right to

Appointment to a Principalship.

An analysis of Illinois law relating to teachers and principals

reveals that no property right attaches to Webster’s certificate

prior to his appointment as a-principal, and clearly shows that

the Board of Education has discretion in appointing teachers and

principals.

Appointments of school principals in the Chicago public

schools are made solely by the Board of Education, upon the

recommendation of the General Superintendent of Schools, from

those candidates who have successfully passed the principals’

examination, who are issued principal’s certificates and who

are deemed fully qualified for the position by the Board in

the exercise of its members’ discretion. The powers of the

Board and the General Superintendent relating to the appoint-

ment and employment of principals are set forth in Sections

24-8, 34-8.1, 34-8.2, 34-18, 34-84 and 34-85 of The School

Code (Ill. Rev. Stat. ch. 122, § 34-1, et seq.)

Section 34-18 of The School Code provides as follows:

“Powers of the board. The board shall exercise general

supervision and management of the public education and

the public school system of the city and shall have power:

* * * * *

“Subject to the limitations in this Article, to . . . employ

teachers and other educational employees and fix their

compensation;

+ * ~ oe *

“The specifications of the powers herein granted are not

to be construed as exclusive, but the board shall also ex-

ercise all other powers that may be requisite or proper for

the maintenance and development of a public school

system, not inconsistent with the provisions of this Code

which apply to all school districts.”

17

Section 34-8 of The School Code provides in pertinent part:

“Appointmerts, promotions and transfers of teachers, prin-

cipals, assistant and district superintendents and all other

employees in the teaching force shall be made, . . . by

the board only upon the recommendation of the general

superintendent of schools or by a majority vote of the full

membership of the board. . . .”

Section 34-8.! »rovides that “[p]rincipals shall be employed

to supervise the educational operation of attendance centers as

the board shall determine necessary.”

Section 34-8.2 of The School Code, which became effective

October 1, 1977,° provides as follows:

“A. Before the general superintendent shall recom-

mend or the board shall vote on the appointment of a

principal, the general superintendent and board may obtain

the nomination of a person or persons to fill the position

of principal by a local nominating committee.

“B. A local nominating committee, when authorized

by board rules and regulations, may consider, interview and

nominate only those persons for the position of principal

who appear on the appropriate eligibility list prepared by

the board of examiners or those principals who consent

to be considered for a transfer. The recommendations of

the local nominating committee shall not discriminate

against any person based upon race, color, creed, national

ancestry, sex, ethnic heritage or religious beliefs.

“C. The board may adopt rules and regulations regard-

ing the formation of and procedures to be followed by

local nominating committees; these rules and regulations

shall assure that at least 60% of the members of each

committee shall be parents or guardians of children in

the affected school.”

Section 34-84 governs the probationary period and tenure of

teachers and principals, as follows:

5. Prior to this legislative enactment, the Board had adopted and

implemented a policy which, in effect, was essentially the same.

18

“Appointments and promotions of teachers, principals

and other educational employees shall be made for merit

only, and after satisfactory service for a probationary period

of 3 years (during which period the board may dismiss or

discharge any such probationary employee upon the recom-

mendation, accompanied by the written reasons therefor,

of the general superintendent of schools) appointments of

teachers and principals shall become permanent, subject to:

(1) termination by compulsory retirement at the age of

65 years; (2) the rules of the board concerning conduct

and efficiency; and (3) removal for cause in the manner

provided by Section 34-85... .”

Finally, Section 34-85 provides as follows regarding removal for

cause after the probationary three-year period:

“No teacher or principal appointed by the board of educa-

tion shall (after serving the probationary period of 3 years

specified in Section 34-84) be removed except for cause,

and then only by a vote of a majority of all members of the

board, upon written charges presented by the general super-

intendent of schools, to be heard by the board or a duly

authorized committee thereof. .. .”

Thus, the Illinois legislature has granted the Board of Educa-

tion express statutory authority and discretion in the appoint-

ment and employment of teachers and principals after they

receive their certification. Nothing in The School Code indicates

that such employees are to be automatically appointed in

“rubber-stamp” fashion once they become certificated, as Web-

ster suggests.

The Board of Examiners, which is an entity separate from

the Board of Education, issued a principal’s certificate to Web-

ster that qualified him for possible appointment by the Board

of Education. The School Code makes it clear that the discre-

tionary power to appoint and promote teachers and principals

6. This section was substantially modified by Public Act 80-

1308, effective August 7, 1978; however, the provision that “no

teacher or principal appointed by the board of education shall (after

serving the probationary period of 3 years specified in Section 34-

84) be removed except for cause” has been retained.

19

rests solely with the Board of Education (Sections 34-8, 34-

8.1). The discretionary power to appoint principals is broad

and non-delegable, Lindblad v. Board of Education, 221 II.

261, 271, 77 N. E. 450 (1906); Elder v. Board of Education,

60 Ill. App. 2d 56, 68, 208 N. E. 2d 423 (1965). Illinois courts

of review have consistently held that the statutory power of

the Board of Education to adopt and implement policy for

the control and management of the schools is “ample and full’

and that courts should refrain from interfering with or sub-

stituting their judgment for the exercise of statutory discretion

by the Board. Richards v. Board of Education, 21 Ill. 2d 104,

110, 171 N. E. 2d 37 (1960); Favorite vy. Board of Education of

Chicago, 235 Ill. 314, 85 N. E. 402 (1908); Wilson v. Board

of Education of Chicago, 233 Ill. 464, 470, 84 N.E. 497

(1908).

Illinois courts have acknowledged the discretionary powers of

boards of education in appointing teachers and principals and

have held such powers to be nondelegable. Board of Trustees v.

Cook County Teachers Union, 62 Ill. 2d 470, 476, 343 N. E. 2d

473 (1976); Illinois Education Association v. Board of Edu-

cation, 62 Ill. 2d 127, 130-131, 340 N. E. 2d 7 (1975); Lind-

blad v. Board of Education, 221 Ill. 261, 271, 77 N. E. 450

(1906); Lockport Area Special Education Cooperative v. Lock-

port Area Special Education Cooperative Association, 33 Il.

App. 3d 789, 338 N.E.2d 463 (1975); Wesclin Education

Association v, Board of Education, 30 Ill. App. 3d 67, 76, 331

N. E. 2d 335 (1975); Board of Education v. Johnson, 21 Ill.

App. 3d 482, 315 N. E. 2d 634 (1974); Board of Education v.

Rockford Education Association, 3 MUll. App. 3d 1090, 1093,

280 N. E. 2d 286 (1972); Elder v. Board of Education, 60 Il.

App. 2d 56, 68, 208 N. E. 2d 423 (1965); Stroh v. Casner,

201 Ill. App. 281, 286 (1916).

Webster claims, contrary to the statutes and decisions cited

above, that the Board could exercise no discretion in the mat-

ter of his appointment and that therefore he had a property

20

interest in and entitlement to the position. If this contention

were correct, Section 34-8 of The School Code which provides

that the Board of Education shall make such appointments

would be meaningless, along with the due process requirements

attained upon completion of the three-year probationary period

specified in Ill. Rev, Stat., ch. 122, § 34-85. A similar pur-

ported legal right to automatically obtain employment on a

teacher’s certificate was succinctly vitiated by the Illinois Su-

preme Court as follows:

“The fact that plaintiff has a life certificate does not guar-

antee him employment, nor compel any particular school

board to hire him, nor does it mean that he is entitled

to employment at a particular salary, or entitled to pay

raises, regardless of his compliance with lawful regula-

tions... .” Richards v. Board of Education, 21 Ill. 2d 104,

111, 171 N. E. 2d 37 (1960).

Webster’s principal’s certificate merely constituted a pre-

requisite which made him eligible for an appointment to a prin-

cipalship. It is analogous to a diploma or a teacher’s certificate

which likewise qualify a person but do not guarantee or afford a

right to such employment. A certificate, like a diploma, is a

recognition that the candidate has successfully passed the re-

quired examination and is found eligible for certain employment.

No Illinois case of which we are aware has ever held that an ap-

plicant with a diploma or similar qualifying certificate has a

property interest in certain employment. It would be absurd to

conclude that every person with a teacher’s or principal’s certifi-

cate has an absolute right to a position protected by the due

process clause of the Fourteenth Amendment, particularly in

light of the Illinois statutory scheme which does not make ap-

pointment automatic upon the granting of a certificate.

Under Section 34-85 of the Illinois School Code, during the

three-year probationary period after appointment to a principal-

ship, the employee may be dismissed or discharged by the Board

upon the recommendation of the General Superintendent with

the only requirement bejng a written statement of reasons. It is

21

only after appointment and completion of three years of satis-

factory service that a principal must be afforded a hearing prior

to possible dismissal for cause. (Section 34-85; People ex rel.

Thomas v. Board of Education, 40 Ill. App. 2d 308, 316-317,

188 N. E. 2d 237 (1963). No requirement for a hearing exists

under Illinois law prior to the expiration of the probationary

period. The Court of Appeals correctly noted the absurdity of

Webster’s contention on appeal in view of this provision of the

Illinois School Code (599 F. 2d 793, 800 (7th Cir. 1979)),

stating as follows in its opinion:

“Thus a probationary teacher or principal may be dis-

charged or dismissed without a hearing. People ex rel.

Thomas v. Bd. of Ed. of City of Chicago, 40 Ill. App. 2d

308, 317, 188 N.E. 2d 237, 242 (1963) (‘There is no

doubt that under sections 34-84 and 34-85 of the School

Code a hearing in connection with a probationary dis-

charge is not required.’). This probationary period does

not begin until the actual appointment from an eligibility

list. Id.

“If Webster is correct in his contention, given the statutory

gloss discussed above, it would mean that although the

Board could have promoted Webster and then dismissed

him without a hearing, the Board could not refuse to pro-

mote him without a hearing. Put differently, if Webster were

to prevail on this point, it would mean that he would be

entitled to a hearing if not promoted, but if promoted he

would not be entitled to a hearing prior to dismissal. He

would have the rights of a tenured, permanent principal

before promotion but after promotion he would lose these

rights for three years. A construction leading to such an

absurd result cannot be correct, and the Illinois courts

have said as much by refusing to count pre-appointment

time served by temporary employees toward fulfillment of

the probationary period.”

to

Ne

B. The Illinois Appellate Court Decision in Maiter vy. Chicago

Board of Education Is Not Dispositive of the Issue In-

volved in This Appeal.

Webster places almost total reliance upon an Illinois Appel-

late Court decision in the case of Maiter v. Chicago Board of

Education, No. 77-423 (1st Dist., Oct. 10, 1979), rendered

subsequent to the Court of Appeals’ decision in the instant

case, as support for his position. The Court of Appeals’ opinion

in this case was rendered after the completion of the briefing

schedule and oral argument in Maiter, and Webster and amicus

curiae Chicago Principals Association advanced the same argu-

ments below that are now presented in the Petition for Writ of

Certiorari. After the Illinois Appellate Court’s opinion in

Maiter was issued, Webster moved for recall of the mandate and

for reconsideration in the Court of Appeals for the Seventh

Circuit and moved the District Court to vacate the judgment

orders and to transmit the mandate and record. The Court of

Appeals denied the former motion and the District Court has

not ruled upon the latter motion as of the time of this writing.

Webster erroneously asserts that Maiter is inconsistent with

the holding of the Court of Appeals herein which found that he

was not deprived of any constitutionally protectible property

interest. The Board of Education’s position is that Maiter was

wrongly decided and has timely filed a petition for leave to

appeal to the Supreme Court of Illinois and, therefore, this

Honorable Court is being asked to review the instant case on

the basis of a state decision that is not necessarily final. More

importantly, however, notwithstanding the Board of Education’s

appeal of the Maiter case, said case is clearly not dispositive of

the issue presented herein.

In Maiter, members of the Chicago Principals Association

who either accepted appointments, had been offered appoint-

ments or were on the most recent principals’ eligibility list

awaiting appointment brought suit against the Board of Educa-

23

tion challenging the procedures used by the Board by which it

obtains, from a local school nominating committee, the nomina-

tion of a certified candidate to fill a principalship vacancy. The

suit thus challenges the system of community input set forth

in Section 34-8.2 of The School Code, which became effective

October 1, 1977, whereby a nominating committee comprised

of community members and parents interviews candidates on

the eligibility lists when a principalship vacancy arises at a

school and nominates a person or persons of its choice upon

which the General Superintendent and Board act, either follow-

ing the committee’s recommendation or rejecting it. This was

the procedure followed in Webster’s case, which has not been

challenged by him. In fact, Webster has relied on his nomina-

tion by a local nominating committee to support his position in

the case at bar. He contends here, however, that the Board may

only appoint in rank order from the eligibility list and that

therefore he had an automatic right to appointment which rose

to the level of a constitutional entitlement. The trial court re-

jected the rank order argument and upheld the system of com-

munity input in the Maiter case, the plaintiffs succeeded in re-

versing that judgment on appeal to the Illinois Appellate Court,

and the Board of Education has filed a petition for leave to

appeal with the Illinois Supreme Court.

The Board’s position is that the “for merit only” language in

Section 34-84 of The School Code does not refer to Section 34-

83, nor is the term “merit” defined in the statute in any way.

Section 34-84 has been amended twice and no changes or

additions have been made to the “merit” language, even though

Section 34-8.2 was recently enacted sanctioning the system of

community input for principalship appointments. Thus, if the

“merit” provisions in Section 34-84 meant rank order appoint-

ment as plaintiff contends, it would be patently inconsistent

with Section 34-8.2. Obviously, since Section 34-84 has not

been amended, the “merit” language must be construed as

compatible with the selection process established in Section

34-8.2.

24

Further, the failure of the Illinois legislature to provide

“rank order” requirements in any of the statutes which provide

for eligibility examinations, eligibility lists or the appointments

of principals by the Board of Education becomes even more

significant when compared with other statutes. Where the legis-

lature has intended to require governmental agencies to appoint

persons to positions based solely on their score on an eligibility

examination, the statutes governing the appointments have pro-

vided for that result in clear, unmistakable terms. Examples of

such explicit statutes are as follows: Civil Service in Parks Act,

Ill. Rev. Stat., ch. 2442, §§ 78 et seq.; Park Employees’ and

Retirement Board Employees’ Annuity and Benefit Fund Sys-

tems Act, Ill. Rev. Stat., ch. 244%, §§ 114, et seq.; University

Civil Service Systems Act, Ill. Rev. Stat., ch. 124%, § 38(b)

(1); Board of Fire and Police Commissioners Act, IIl. Rev.

Stat., ch. 24, §§ 10.2.1-1 et seqg.; Chicago Sanitary District Act,

Ill. Rev. Stat. ch. 42, §§ 323 et seq.; and Civil Service in Cities

Act, Ill. Rev. Stat. ch. 24, §§ 10-1-1 et seq. In all of these stat-

utes, the legislature clearly intended that there be some form

of rank order appointments and manifested this intention in

clear, unmistakable language. The Illinois School Code contains

no language requiring any form of rank order appointment. It

must therefore be concluded that the legislature intended to give

the Board of Education the right to appoint principals upon a

basis other than rank order, contrary to the Maiter decision.

Webster discusses the “Otis Law” (Laws 1917, p. 723) at

length in his Petition in an attempt to convince this Court that

the words “for merit only” somehow take away all discretion of

the Board of Education in the appointment of principals. As the

Board of Education respondents have shown, both Illinois

statutory and case law indicate just the opposite. Prior to 1917,

the duty of examining persons offering themselves as candidates

for principalships was delegated to the Board of Education.

Following enactment of the Otis Law, the duty of providing

examinations for appointment of teachers and principals and of

25

preparing all necessary eligibility lists was vested in the Board

of Examiners. (Ill. Rev. Stat., ch. 122, § 34-83).

Respondents fully agree that pursuant to the Otis Law and

Section 34-83 of The School Code, the Board of Examiners has

the exclusive power to examine candidates for certificates and

to prepare eligibility lists. Respondents, however, disagree with

the further contention of Webster that once a candidate be-

comes certificated, the Board of Education has no discretionary

power regarding his/her actual appointment. The Illinois Su-

preme Court has made it clear that possession of a certificate

is not equivalent to automatic appointment, contrary to Web-

ster’s claim. Said court stated as follows in Richards v. Board

of Education, 21 Ul. 2d 104, 111, 171 N. E. 2d 37:

“The fact that plaintiff has a life certificate does not

guarantee him employment, nor compel any particular

school to hire him, nor does it mean that he is entitled to

employment at a particular salary, or entitled to pay

raises, regardless of his compliance with lawful regulations

concerning such pay raises.”

Webster bases his contention that the Board of Education is

without discretionary power in the appointment of principals

upon the Illinois case of People ex rel. Cook v. Board of Edu-

cation, 295 Ill. App. 41, 14 N. E. 2d 520 (1938). A reading

of said case, however, reveals that it was confined to a much

narrower issue and that its holding is not applicable to the issues

involved in this case. The suit challenged the authority of the

Board of Examiners to make rules concerning the principal's

examination and to change the examination requirements with-

out the approval of the Board of Education. The Court held

that the power to make rules governing or controlling the exam-

ination of candidates is vested in the Board of Examiners. The

Cook case was concerned solely with the issue of whether the

control of examinations lies within the jurisdiction of the Board

of Education or the Board of Examiners. The court did not go

beyond the matter of examination and did not discuss the Board

26

of Education’s power concerning actual appointment of

principals,

The contention of Webster that once a person becomes certi-

ficated, he/she automatically pessesses the absolute right to

appointment to a principalship can be carried to a very illogical

conclusion. Under such a theory, once a nerson becomes certi-

ficated he would have the right to a principalship no matter

what crimes he had committed or misconduct in which he had

engaged between the time of certification and actual appoint-

ment unless there is a due process hearing which is not even

required by Illinois law for the first three years after a candidate

is appointed, There is no provision in Article 34 of The School

Code, which only governs the Chicago Board of Education, as

there is in Article 21 governing all other school districts (Il.

Rev. Stat., ch. 122, § 21-23), which gives said Board or the

Board of Examiners the power to revoke a certificate once it

has been issued. Therefore, the only alternative in such a case

is for the Board of Education to decline to appoint the candi-

date. Further, the statutes discussed above governing the ap-

pointive powers of the Board of Education also support this

view.

In the case at bar, plaintiff already had been issued a prin-

cipal’s certificate when his arrest and indictment occurred. Since

there is no statutory authority in Article 34 of The School Code

for revocation or withdrawal of a certificate, the Board of Ex-

aminers was powerless to take any action with regard to plain-

tiff. People ex rel. Laist v. Lower, 251 Ill. 527, 96 N. E. 346

(1911); People ex rel. Latimer v. Board of Education, 341

Ill. App. 554, 94 N. E. 2d 555 (1950). Once said body had

made its recommendation to the Board and a certificate was

issued, the Board of Examiners had no authority to take any

action with regard to plaintiff based on his conduct after issuance

of the certificate. Therefore, only the Board of Education could

y a |

take action.7 A person who is appointed a principal must serve

a probationary period of three years, and under Illinois law a

right to a hearing regarding dismissal does not attach until the

probationary period is over (Ill. Rev. Stat., ch. 122, §$§ 34-

84 and 34-85). Thus, the Board of Education had the discre-

tionary power to decline to appoint Webster, and he was not

entitled to a hearing on the matter under Illinois law. Plaintiff

clearly had no “legitimate claim of entitlement” to appointment

by virtue of his possession of a certificate. Board of Regents Vv.

Roth, 408 U.S. 564, 92 S. Ct. 2074 (1972).

Webster also cites Courtney v. Board of Education, 6 Ill.

App. 3d 424, 286 N. E. 2d 25 (1972), as establishing one of

the bases of his property right contention. Said case, however,

clearly does not in any way support such a contention. The

plaintiffs in that case were issued principal’s certificates in 1967

and had not yet been appointed as principals. They alleged that

the Board acted in an arbitrary and discriminatory manner in

not appointing them before appointing persons whose certificates

were issued in 1970. The trial court granted the defendants’

motion to dismiss, and the sole issue on appeal was whether

the complaint was properly dismissed. The Illinois Appellate

Court held that the allegations of the complaint were sufficient

and remanded the case to allow the plaintiffs an opportunity to

prove the issues of fact raised. The court specifically stated as

follows in its opinion: “We have not been concerned here with

the verity of the allegations in the complaint, and we express no

opinion thereon.” (6 Ill. App. 3d at 427)

In any event, the pending Maiter case, whatever its final

disposition, will decide the question of rank order appointment

7. It should be noted that Section 4-24 of the Rules of the Board

of Education provides in pertinent part as follows:

“(b) Certificates of Principals shall expire at the end of six

years from the date of examination unless the holder shall have

been assigned under such certificate as principal or to some

position equal or superior to the position of principal.”

28

and interpret the “merit” language in Section 34-84. This Court

should therefore not involve itself in considering such issues

since plaintiff neither alleged in any of his complaints nor

proved that his rights had been violated by the Board not having

appointed him a principal based on his rank in the principal

eligibility list. The Maiter case has not and will not decide the

issue presented herein, which is whether Webster or any other

candidate with a principal’s certificate has an entitlement to be

appointed as a principal under state law.

A reading of Maiter reveals that the Illinois Appellate Court

misapprehended the Court of Appeals’ decision in Webster. As

the Court of Appeals correctly pointed out (599 F. 2d at 801,

fn. 12) in Maiter the system of community input in the nomina-

tion of a certificated candidate to fill a principalship vacancy

was challenged. It was that procedure which had been followed

in Webster’s case, and which was not challenged by him. As

the Court of Appeals correctly concluded “. . . the issue in-

volved (in Maiter) is priority of consideration as opposed to

entitlement to position.” (599 F. 2d at 801, fn. 12). In con-

cluding thus the court relied upon Courtney v. Board of Educa-

tion, 6 Ill. App. 3d 424, 286 N. E. 2d 25 (1972), about which

it stated:

“But this decision does not state that any given person

possessing a certificate is entitled to a principalship by

virtue of reaching the top of the eligibility list. At most it

means that the Board may not consider those lower on the

list before considering those higher up.” 599 F. 2d at 801.

That this is also the principal holding in the Maiter decision

becomes fairly obvious wherein the Lllinois Appellate Court, in

attempting to resolve the provisions of Section 34-8.2 of the

School Code which provides for such community input with its

decision, states as follows at page 9 of the slip opinion:

“If the board must make ten appointments from the

eligibility list in a certain month, the local nominating

committees can interview, the next ten persons on the list

29

and relay their preferences to the board. In this manner,

not only is the board complying with the statutory require-

ment of rank order appointment, but it can also consider

the particular needs of the individual school in making an

appointment.” (Emphasis supplied. )

Thus, Maiter decided the priority of consideration of principal-

ship candidates, but not their entitlement to promotion.

Despite the foregoing, the court in Maiter gratuitously de-

cided to “decline to concur” with the Court of Appeals holding

in Webster. Yet a careful review of the Maiter decision will fail

to reveal anywhere that it was specifically decided that the

phrase “for merit only” creates an entitlement to a principalship

under Illinois law. The court in Maiter ignored a significant

portion of the Court of Appeals’ opinion in Webster which is

as follows:

“There is no indication that the Board of Education is

merely a formalistic ‘rubber stamp’ in the promotion proc-

ess, which Webster’s argument would require. Rather,

there is every indication that, whatever the order it must

consider them in, the Board of Education as a separate

entity is to have the final word and power of promotion

or denial over those candidates who have been certified to

it by the Board of Examiners. The statute states that pro-

motions shall be made by the Board, and by no other. That

they are only to be made for merit and not for patronage

reasons surely does not prevent the Board from exercising

its judgment against the merits of a given applicant. There

is thus no indication in Illinois law that possession of a

certificate from the Board of Examiners means anything

more than that one is to be placed on the eligibility list

and considered at the appropriate time by the Board of

Education. Claims of entitlement to promotion sufficient

to evoke constitutional protection must be based on a

surer footing.” (Footnote omitted). 599 F. 2d at 801.

Nothing in Maiter alters that reasoning. As it did formerly,

Webster’s argument after Maiter still requires the Board to be

nothing more than a “ ‘rubber stamp’ in the promotion proc-

ess.” As we have previously stated, under such a scheme, once

30

a person became certificated he would have the right to a

principalship no matter what crimes he had committed or mis-

conduct he had engaged in between the time of certification and

actual appointment. Under plaintiff's theory the Board would

have no alternative but to appoint the candidate a principal

unless it provided him with more due process safeguards than

are called for under Illinois law for the first three years after his

appointment (Ill. Rev. Stat., ch. 122, § 34-84). Obviously, the

court in Maiter did not have before it the situation involved in

this case. The Court of Appeals correctly chose to follow well-

established state law which acknowledges that the School Code

authorizes the exercise of discretionary judgment by the Board

in the appointment of principals. Thus, the decision in Maiter

does not alter the appropriate reasoning applied in Webster, nor

does it require any change to be made in its holding. Contrary

to Webster’s contention, the Court of Appeals did not attempt

to decide the issue in Maiter and correctly found that it did not

need to await the holding therein because it was not dispositive

of the property right question involved in Webster.

II.

THE DOCTRINE OF ABSTENTION IS INAPPLICABLE.

Petitioner first incorrectly contends that the Court of Appeals

in interpreting state law “usurped” the authority of the State

Courts (P. 24). It has long been established that a federal court

having jurisdiction has the power to determine questions of state

law, even though not settled by any state decision. Siler v.

Louisville & N. R. Co., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct.

451 (1909); also see, e.g., Meredith v. Winter Haven, 320

U. S. 228, 88 L. Ed. 9, 64 S.Ct. 7 (1943); Doud v. Hodge,

350 U.S. 485, 100 L. Ed 577, 76 S.Ct. 491 (1956). Thus,

the determinations of state law were appropriate by both the

Court of Appeals and the trial court.

<a

31

Petitioner next implicitly maintains that the Court of Appeals

should have abstained from deciding this case until the Tliinois

Appellate Court decided the Maiter case (pp. 24-26). It is im-

portant to note that none of the parties attempted to invoke

the doctrine of absention in either the trial court or the Court

of Appeals. Petitioner was obviously aware of the pendency

of the state case, even though he was not a party, since he had

the trial court’s decision in Maiter admitted in evidence. The

fact that parties have not seasonably invoked the doctrine

militates against its application. Hostetter v. Idlewild Bon

Voyage Liquor Corp., 377 U.S. 324, 12 L.Ed. 2d 350, 84

S. Ct. 1293 (1964).

The mere presence of what petitioner contends to be a doubt-

ful issue of state law does not alone justify application of the

doctrine of abstention. Baggett v. Bullitt, 377 U.S. 360, 12

L. Ed. 2d 377, 84 S.Ct. 1316 (1964). Only exceptional cir-

cumstances, not present in this case, would warrant the ap-

plication of the doctrine and the non-exercise of the jurisdiction

conferred. Meredith v. Winter Haven, 320 U.S. 228, 88 L. Ed.

9, 64 S.Ct. 7 (1943). Thus, it was not only appropriate, but

the fulfillment of its duty for the Court of Appeals to decide

the limited question of state law involved herein.

Ww

nN

IIT.

BOARD OF EDUCATION’S CONSIDERATION OF EVENTS

AND CIRCUMSTANCES RESULTING IN CRIMINAL PRO-

CEEDINGS AGAINST A CANDIDATE FOR A PRINCIPAL-

SHIP IS APPROPRIATE IN ITS DETERMINATION OF

THAT PERSON’S FITNESS FOR THE POSITION.

Petitioner incorrectly contends that the Court of Appeals

presumed him guilty of criminal conduct. In support of that con-

tention he incredibly asserts that “there is not one shred of

credible evidence in the record to indicate that the property

seized from Mr. Webster’s home was stolen property.”

The motion to suppress filed in the state criminal court was

directed to the illegal seizure of a ring from plaintiff's apart-

ment. That ring was highly identifiable since it was the jewelry

store owner's personal wedding band which had been personally

made by him. It was identified by the police as having been

one of the rings taken in the robbery of the jewelry store. It

and another ring were in a jeweler’s envelope with a jeweler’s

notations written on the front. That envelope was found in

plaintiff's coat pocket.

What had led the police to plaintiff in the first place was

that an admitted participant in the robbery told them that he

and an accomplice had contacted a “Douglas Weber” at Douglas

Webster’s unlisted telephone number for disposal of the stolen

property. The accomplice was one of plaintiff's former pupils,

the plaintiff at that time having been a teacher of inmates at

the Cook County Jail. The physical description of the person

who had received the stolen property and the description of

his automobile matched the plaintiff and his automobile.

It was these facts, not merely the fact of his arrest and in-

dictment, which were communicated to the Board and from

which most of its members determined that plaintiff was unfit

to be a principal. The Board had not “presumed” plaintiff

33

guilty of criminal conduct but had determined from the facts

which they had heard that, in the words of the trial court, he

“. . . Was not a person to be trusted with the important re-

sponsibility of being a principal of a school in the City of

Chicago.”

Likewise, the Court of Appeals made no such presumption of

guilt. The footnote to its opinion which petitioner quotes in his

argument (P. 26) is an addendum to its determination that

it was appropriate for the Board to consider the “. . . events and

circumstances leading up to and surrounding an arrest and

subsequent indictment” and concluded that “. . . the occurrence

of an arrest does not itself render such consideration imper-

missible.” Webster, 599 F.2d at 802, (P. 30a). That the

Court of Appeals determined that it was appropriate for the

Board to consider such facts is far from the invocation of a

presumption of guilt.

34

CONCLUSION.

On the basis of the above and foregoing reasons and authori-

ties, it is respectfully requested that this Honorable Court deny

the Petition for Writ of Certiorari.

Respectfully submitted,

MICHAEL J. MURRAY,

ROBERT J. KRAJCIR,

PATRICIA J. WHITTEN,

228 North LaSalle Street,

Chicago, Illinois 60601,

(312) 641-3900,

Attorneys for Respondents.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

No. 79-765

DOUGLAS WARREN WEBSTER,

Petitioner,

VS.

THE BOARD OF EDUCATION OF THE CITY OF

CHICAGO, ET AL.,

Respondents.

PETITION FOR A WIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

OBJECTIONS TO MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

Respondents respectfully withhold their consent and object

to the motion of the Chicago Lawyers’ Committee for Civil

Rights Under Law, Inc. for leave to file its brief Amicus Curiae

in support of Douglas Webster’s Petition for Writ of Certiorari

for the reasons that the amicus brief seeks to raise issues that

were either not presented in the courts below, are not raised in

the Petition for Writ of Certiorari, or are based upon erroneous

facts.

2

The sole question presented for review as stated in Webster's

Petition is whether he was deprived of a constitutionally pro-

tected property right by the Board of Education's denial of his

appointment to a principalship. The amicus brief argues the

following issues: (1) alleged interference with Webster's Fourth

Amendment right to suppress illegally obtained evidence, which

was never raised below, even in the complaint; (2) alleged

denial of due process on the basis of arrest which is essentially

a liberty interest issue (see Petition, p. 27, fn. 1), rejected by

the Court of Appeals and not raised as an issue in the Petition

for Writ of Certiorari; and (3) the alleged violation of the right

to be considered for employment in a racially neutral manner

pursuant to Title VII of Civil Rights Act of 1964, which is a

racial discrimination claim rejected by both the trial court and

the Court of Appeals and specifically not raised as an issue in

Webster’s Petition.

All of amicus’ contentions are based on incorrect inferences

as to the facts of this case. Neither of their stated positions jibe

with the record, i.¢., that the Board “. . . construed the exercise

of his Fourth Amendment right as evidence of poor moral char-

acter...” and, that the Board “. . . denied him an opportunity

to be considered for a principalship based solely on the fact

of his arrest and the subsequent suppression of illegal evidence.”

(Motion for Leave, etc., page 2). More tham the mere fact of

arrest was considered by the Board. In its consideration of

petitioner for a principalship, the Board considered the events

and circumstances leading up to and surrounding his arrest and

subsequent indictment (R. B. 9-13, 32-33).' Nothing in the

record supports the assertion that any member of the Board

construed the mere exercise of his Fourth Amendment right as

evidence of poor moral character.

i. “R. B.” refers to Brief in Opposition to Petition for Writ of

Certiorari filed on behalf of Respondents with this Court.

3

For the foregoing reasons, Respondents respectfully submit

that the motion to file the brief Amicus Curiae should be denied.

In the event this Court grants the motion, Respondents intend

thereafter to file a response to the amicus brief.

Respectfully submitted,

MIcHaEL J. MURRAY,

ROBERT J. KRAJCIR,

PATRICIA J. WHITTEN,

228 North LaSalle Street

Chicago, Illinois 60601

(312) 641-3900

Attorneys for Respondents.