Petition — Barndt v. Wissahickon School District

Ripreme Com, Ui

{ FILED

MAY 27 1980

8

ye LIRICHAEL RODAK, JR, CLERE

Supreme Court of the United States

OcroseR TERM, 1979

79-1851

JACQUELINE BARNDT,

Petitioner,

vs.

WISSAHICKON SCHOOL DISTRICT, er A .,

Respondents

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Third Circuit

LEIGH P. NARDUCCI,

Counsel for Petitioner,

Of Counsel: Suite 608,

DONALD J. MARTIN, One Montgomery Plaza,

Suite 609, Norristown, Pennsylvania 19401

One Montgomery Plaza, (215) 275-2230

Norristown, Pennsylvania 19401

(215) 277-6772

Pennsylvania Appellate Printing Co.—Call Toll Free—! (800) 526-7560

eee ree MG thay 5 he Keke 2

er ee oe bcs pw oleae 2

a ek keh ae wows s 2

Constitutional and Statutory Provisions Involved .... 3

I a os oss vce Ses dvesn eee ns 7

REASONS FOR GRANTING THE WRIT:

I. The decision below conflicts with the decision of

another court of appeals as to the necessity of an

independent fact finder where factual issues are in

ain POCO St ON oa cin ke eis 64 53 10

II. The decision below is in conflict with this court’s

decision in Ward v. Village of Monroeville, 409

WO isis vic s cccenscvecacevcs ll

EN PIN ceil wall seats sey Rowse edness 12

APPENDIX

Appendix A

Judgment Order of the Court of Appeals ........... la

Appendix B

Opinion of the District Court ..................... 3a

TABLE OF CITATIONS

CAsEs CITED:

Hortonville Joint School District No. 1 v. Hortonville

Education Association,

ee 2, 10

INDEX

Cases CITED:

Landi v. West Chester Area School District,

23 Pa. Cmwlth. 586, 353 A.2d 895 (1976) ...... 9

Staton v. Mayes,

552 F.2d 908 (10th Cir.) cert. denied

436 US. DUR Gi a wc ss..... 10

Ward v. Village of Monroeville,

M00 US. SE Ci css... 11

U.S. ConsTITUTION CITED:

Fourteenth Amendment, Section 1 ............. 3, 7, 8

STATUTES CITED:

24 Pa. Stat. Aum. Se ee ......... 3, 9

Pe 9

Ts woe . aa 9

$10-1088 ...... cca. sas... 4

$11-1968 . . ... eee... ...... 4,9

§11-1198 .:). ce... 4

OSS) Mee 5, 8

§11-1190 . .... ce... 6, 8

et | a 6, 9

$11-1198 .: | cw... 9

Section 1983 of Title 42, United States Code

R.S. §107@ ...... can eee acc... 3,7

28 U.S.C. GERBER oc ..,...... 2

28 USC. (498 ee... 7

28 US.C. §I96MS) cee. ...... 7

IN THE

SUPREME COURT OF THE UNITED STATES

OcroBER TERM, 1979

No.

JACQUELINE BARNDT,

Petitioner,

vs.

WISSAHICKON SCHOOL DISTRICT, Er At.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Third Circuit

The petitioner, JACQUELINE BARNDT, respectfully

prays that a writ of certiorari issue to review the Judgment

and Order of the United States Court of Appeals for the

Third Circuit entered in this proceeding on February 25,

1980. Respondents are Wissahickon School District; Wissa-

hickon Board of School Directors; William Sabia; Matthew

Coleman; Elizabeth Allen; Louise North; Robert Russell;

Robert G. Moore; George T. Bauer; Theodore Thompson;

Robert J. Correnty; Wesley E. Gorg; Donald Richwagon;

Richard S. Thornton; Phyllis Catz, Individually and as

Members of the Board of School Directors of Wissahickon

School District, and William Stoutenburgh, Individually

and as Superintendent of Schools of Wissahickon School

District.

OPINION BELOW

The Judgment of the Court of Appeals for the Third

reported, appears in Appendix A hereto. The Opinion of

the United States District Court for the Eastern District of

Pennsylvania is reported at 475 F. Supp. 503 and appears

in Appendix B hereto.

JURISDICTION

The Judgment of the Court of Appeals for the Third

Circuit was entered on February 25, 1980. This Petition

for Certiorari was filed within ninety (90) days of that

date. This Court's jurisdiction is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Whether the due process clause of the Fourteenth

Amendment prohibits a school board from making the de-

cision to fire a tenured professional employee where a deci-

sion requires the resolution of disputed issues of fact.

2. Whether the decision of this Court in Hortonville

Joint School District No. 1 v. Hortonville Education As-

sociation, 426 U.S. 482 (1976), is applicable where the

public employer must resolve disputed issues of fact.

3. Whether a school board is inherently disqualified

by the due process clause of the Fourteenth Amendment

from sitting in judgment on the discharge of a tenured

professional employee, including the resolution of disputed

issues of fact, when the school board is the employer and

is also responsible for all school finances including the

power to levy taxes, is the body which specifies the charges,

where the prosecutor-superintendent of schools is a stat-

3

utory member of the school board, and where there is no

right to de novo appeal.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the Con-

stitution of the United States provides:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

Section 1983 of Title 42, United States Code, R.S.

§1979 provides:

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.”

24 Pa. Stat. Ann. §5-507 provides:

In order to establish, enlarge, equip, furnish, oper-

ate, and maintain any schools or departments herein

4

provided, or to pay any school indebtedness which any

school district is required to pay, or to pay any in-

debtedness that may at any time hereafter be created

by any school district, or to enable it to carry out any

provisions of this act, the board of school directors in

each school district is hereby vested with all the ne-

cessary authority and power annually to levy and

collect, in the manner herein provided, the neces-

sary taxes required, in addition to the annual State

appropriation, and shall have, and be vested with, all

necessary power and authority to comply with and

carry out any or all of the provisions of this act.

24 Pa. Stat. Ann. §10-1082 provides:

The duties of district superintendents shall be the

same as those now required of county superintendents,

and also such as shall be required of them by the

boards of school directors of their respective district.

The district superintendent shall have a seat on the

board of school directors of the district, and the right

to speak on all matters before the board, but not to

vote.

24 Pa. Stat. Ann §11-1106 provides:

The board of school directors in every school district

shall employ the necessary qualified professional em-

ployes, substitutes and temporary professional em-

ployes to keep the public schools open in their respec-

tive districts in compliance with the provisions of this

act.

24 Pa. Stat. Ann. §11-1122 provides, in pertinent part:

The only valid causes for termination of a contract

heretofore or hereafter entered into with a profes-

sional employe shall be immorality, incompetency,

intemperance, cruelty, persistent negligence, mental

derangement, advocation of or participating in un-

American or subversive doctrines, persistent and wil-

ful violation of the school laws of this Commonwealth

on the part of the professional employe . . .

24 Pa. Stat. Ann. §11-1127 provides:

Before any professional employe having attained a

status of permanent tenure is dismissed by the board

of school directors, such board of school directors

shall furnish such professional employe with a detailed

written statement of the charges upon which his or her

proposed dismissal is based and shall conduct a hear-

ing. A written notice signed by the president and

attested by the secretary of the board of school di-

rectors shall be forwarded by registered mail to the

professional employe setting forth the time and place

when and where such professional employe will be

given an opportunity to be heard either in person or

by counsel, or both, before the board of school di-

rectors and setting forth a detailed statement of the

charges. Such hearing shall not be sooner than ten

(10) days nor later than fifteen (15) days after such

written notice. At such hearing all testimony offered,

including that of complainants and their witnesses,

as well as that of the accused professional employe

and his or her witnesses, shall be recorded by a com-

petent disinterested public stenographer whose serv-

ices shall be furnished by the school district at its

expense. Any such hearing may be postponed, con-

tinued or adjourned.

24 Pa. Stat. Ann. §11-1130 provides, in pertinent part:

A written notice of any decision of the board of

school directors discharging a professional employe,

shall be sent by registered mail to such professional

employe at his or her last known address within ten

(10) days after such hearing is actually concluded.

24 Pa. Stat. Ann. §11-1131 provides:

In case the professional employe concerned con-

siders himself or herself aggrieved by the action of

the board of school directors, an appeal by petition,

setting forth the grounds for such appeal, may be

taken to the Superintendent of Public Instruction at

Harrisburg. Such appeal shall be filed within thirty

(30) days after receipt by registered mail of the

written notice of the decision of the board. A copy

of such appeal shall be served by registered mail on

the secretary of the school board.

The Superintendent of Public Instruction shall fix

a day and time for hearing, which shall be not sooner

than ten (10) days nor more than thirty (30) days

after presentation of such petition, and shall give

written notice to all parties interested.

The Superintendent of Public Instruction shall re-

view the official transcript of the record of the hearing

before the board, and may hear and consider such

additional testimony as he may deem advisable to

enable him to make a proper order. At said hearing

the litigants shall have the right to be heard in person

or by counsel or both.

After hearing and argument and reviewing all the

testimony filed or taken before him, the Superintend-

7

ent of Public Instruction shall enter such order, either

affirming or reversing the action of the board of school

directors, as to him appears just and proper.

STATEMENT OF THE CASE

This action was commenced on October 12, 1978 by

Complaint filed in the United States District Court for

the Eastern District of Pennsylvania, setting forth a claim

under the Fourteenth Amendment to the Constitution of

the United States and 42 U.S.C. §1983. Jurisdiction of

the District Court was invoked under 28 U.S.C. §1343(3).

On August 13, 1979 Chief Judge Joseph S. Lord, III of

that Court denied petitioner's motion for summary judg-

ment and granted respondents’ motion for summary judg-

ment. A timely appeal was taken from that final Order to

the United States Court of Appeals for the Third Circuit

pursuant to 28 U.S.C. §1291.

Petitioner Jacqueline Barndt was a tenured profes-

sional employee of respondent Wissahickon School District.

(The other defendant-respondents in this case are all the

members of the Board of School Directors at the time of

petitioners dismissal as well as the Superintendent of

Schools.) After ten years of employment she received two

consecutive annual unsatisfactory professional employee

ratings. Shortly after receiving the second rating the Super-

intendent of Schools submitted to the School Board a

proposed statement of twenty-five charges against peti-

tioner. These included incompetence, negligence and wil-

ful violation of school laws.

Public hearings concerning these charges were held

between September, 1974 and January, 1975, and resulted

in 1,585 pages of transcript, which transcript was con-

sidered by the District Court in its decision in this matter.

Four days after the last dismissal hearing, on January 27,

1979 the School Board voted publicly, unanimously and

without public discussion, to terminate the teacher's em-

ployment. Formal notice was given by mail on January 29,

1975. Petitioner's termination was appealed to the Penn-

sylvania Secretary of Education, who affirmed the Board's

decision. A timely appeal to the Commonwealth Court

of Pennsylvania was denied. The Supreme Court of Penn-

sylvania denied petitioner's petition for allowance of appeal

filed in that, action.

This action, which was filed shortly after petitioner

exhausted all her available state remedies, asserted that

the procedures of the Pennsylvania School Laws under

which petitioner was discharged violate her rights to due

process of law under the Fourteenth Amendment to the

United States Constitution. These procedures are as fol-

lows: A tenured professional employee’s employment may

be terminated only on grounds of:

«<<

immorality, incompetency, intemperence, cruelty, per-

sistent negligence, mental derangement, advocation

of or participating in un-American or subversive doc-

trines, persistent and wilful violation of the school

laws of this Commonwealth on the part of the pro-

fessional employee.” 24 Pa. Stat. Ann §11-1122.

A teacher under these circumstances is entitled to a

written specification of the charges given at least ten (10)

days before the scheduled hearing. 24 Pa. Stat. Ann.

§11-1127. The School Board’s decision dismissing the pro-

fessional employee must be given in writing by registered

mail within ten (10) days after the conclusion of the

hearing. 24 Pa. Stat. Ann. §11-1130.

From the School Board’s decision an appeal lies to the

State Secretary of Education, 24 Pa. Stat. Ann. §11-1131,

and from there to the Commonwealth Court of Pennsyl-

vania in accordance with the Pennsylvania Administrative

Procedure Law, 24 Pa. Stat. Ann. §11-1132. Although the

statutes appear to set forth a broad right of review, by

judicial construction appeal after the School Board decision

is limited to the review of the record made before the

School Board and must be sustained if “the evidence in-

cluding the inferences therefrom, is found to be such that

a reasonable man, acting reasonably, might have reached

that decision . . .” Landi v. West Chester Area School

District, 23 Pa. Cmwlth. 586, 589, 353 A.2d 895 (1976)

[emphasis by the court].

The Board of School Directors, which by statute is

the only body that conducts an evidentiary hearing and

which makes the decision to be reviewed on the basis of

the foregoing standard, has the overall power to manage

the schools. The Board of School Directors is the tenured

teacher’s employer. 24 Pa. Stat. Ann. §11-1106. That same

School Board has the power to establish its own budget

and to levy, assess and collect taxes. 24 Pa. Stat. Ann.

§§5-507, 6-602. The Superintendent of Schools, who in

these proceedings both recommends discharge and _pre-

sents the case against the teacher, is ex officio a member

of the School Board with the right to speak on all matters

before the Board, but without the right to vote. 24 Pa.

Stat. Ann. §10-1081.

10

REASONS FOR GRANTING THE WRIT

I. The decision below conflicts with the decision of

another court of appeals as to the necessity of an in-

dependent fact finder where factual issues are in dis-

pute.

The courts below held that this case was controlled

by Hortonville Joint School District No. 1 v. Hortonville

Education Association, 426 U.S. 482 (1976). Hortonville

involved whether schoo! board members with the power

to employ and dismiss a teacher could, consistent with

due process, dismiss teachers engaged in a strike prohib-

ited by state law. This Court specifically pointed out that

there was no question that the teachers were engaged in a

strike and no question that that strike was illegal under

state law. The School Board's only decision was therefore

how its discretion should be exercised to carry out its du-

ties. The courts below in this case held the decision in

Hortonville to be fully applicable even though the charges

against petitioner were factually disputed.

That decision is con.ary to the decision of the United

States Court of Appeals for the Tenth Circuit in Staton

v. Mayes, 552 F.2d 908 (10th Cir.) cert. denied 434 U.S.

907 (1977). That case was an action under 42 U.S.C.

Section 1983 by a superintendent of schools who was dis-

missed by vote of the local school board on charges of

wilful neglect of duty and incompetence. The Tenth Cir-

cuit declined to hold Hortonville applicable to a case in

which fact finding was critical.

The decision of the courts below in this case, holding

Hortonville fully applicable even though facts were in

dispute, is in direct conflict with the decision in Stanton

v. Mayes, supra.

11

This conflict justifies the grant of certiorari to review

the judgment below.

II. The decision below is in conflict with this court’s

decision in Ward v. Village of Monroeville, 409 U.S.

57 (1972).

The bias which is asserted in this case is a bias which

is inherent in the office of school director. Under Penn-

sylvania Law the school board is the employer. It is also

the only board with the power to employ and dismiss em-

ployees. The school board has a direct pecuniary interest

in employment because it is responsible for school finances

and has the power to assess taxes.

In Ward v. Village of Monroeville, 409 U.S. 57 (1972)

this Court struck down an Ohio statutory scheme which

permitted mayors to sit as judges in cases of ordinance

violations and traffic offenses. The mayor of an Ohio town

had wide executive power, was the chief conservator of

the peace, and was responsible to account for village fi-

nances. Part of the village income was derived from these

fines. This Court held that, although trial de novo was

available, this did not overcome the failure to provide a

neutral and detached judge in the first instance.

In this case the Board of School Directors has a similar

pecuniary interest in the outcome of these cases—it spends

less money if it discharges a teacher. The Board is respon-

sible for finances, and has the pows ¢ to assess and collect

taxes. Yet, under Pennsylvania Law, this same school

board resolves conflicting factual issues when the con-

tinued employment of a tenured professional employee is

drawn into question, without de novo review.

The decision below, uphoiding that statutory scheme

is contrary to a decision of this Court, which justifies the

grant of certiorari.

12

CONCLUSION

For these reasons, a Writ of Certiorari should issue to

review the Judgment and Order of the Third Circuit.

Respectfully submitted,

LEIGH P. NARDUCCI

Counsel for Petitioner,

Suite 608,

One Montgomery Plaza,

Norristown, Pennsylvania 19401

(215) 275-2230

Of Counsel:

DONALD J. MARTIN,

Suite 609,

One Montgomery Plaza,

Norristown, Pennsylvania 19401

(215) 277-6772

Dated: May 19, 1980

la

APPENDIX A

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

Docket No. 79-2279

BARNDT, JACQUELINE,

Appellant,

vs.

WISSAHICKON SCHOOL DISTRICT and WISSAHIC-

KON BOARD OF SCHOOL DIRECTORS and SABIA,

WILLIAM; COLEMAN, MATTHEW; ALLEN, ELIZA-

BETH; NORTH, LOUISE; RUSSELL, ROBERT;

MOORE, ROBERT G.; BAUER, GEORGE T.; THOMP-

SON, THEODORE; CORRENTY, ROBERT J.; GORG,

WESLEY E.; RICHWAGON, DONALD; THORNTON,

RICHARD S.; CATZ, PHYLLIS, all of the above named

individually and as members of the Board of School

Directors of Wissahickon School District, and STOUTEN-

BURGH, WILLIAM, individually and as Superintendent

of Schools of Wissahickon School District

APPEAL FROM THE UNITED STATES District CoURT

FOR THE EASTERN District OF PENNSYLVANIA

D.C. Civit No. 78-3396

SUBMITTED UNDER RULE 12(6) FeBRuARy 21, 1980

BEFORE: ROSENN AND SLOVITER, Circuit JUDGES, AND

Layton, District JuDGE*

* Honorable Caleb R. Layton, 3rd, United States District Judge

for the District of Delaware, sitting by designation.

2a

JUDGMENT ORDER

After consideration of all contentions raised by appellant,

it is

ADJUDGED and ORDERED that the judgment of the

district court be and is hereby affirmed.

Costs taxed against appellant.

BY THE COURT,

/s/ Max Rosenn

MAX ROSENN,

Circuit Judge

Attest:

/s/ Thomas F. Quinn

THOMAS F. QUINN,

Clerk

DATED: FEB. 25, 1980

3a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE EASTERN DiIstTRICT OF PENNSYLVANIA

Civit. ACTION

No. 78-3396

JACQUELINE BARNDT

vs.

WISSAHICKON SCHOOL DISTRICT

-and-

WISSAHICKON BOARD OF DIRECTORS

-and-

WILLIAM SABIA, MATTHEW COLEMAN, ELIZA-

BETH ALLEN, LOUISE NORTH, ROBERT RUSSELL,

ROBERT G. MOORE, GEORGE T. BAUER, THEO-

DORE THOMPSON, ROBERT J. CORRENTY, WESLEY

E. GORG, DONALD RICHWAGON, RICHARD S.

THORTON, and PHYLLIS CATZ, all of the above-named

individually and as members of the Board of School

Directors of Wissahickon School District

=

-and-

WILLIAM H. STOUTENBURGH, Individually and as

Superintendent of Schools of Wissahickon School District

OPINION

JOSEPH S. LORD, III, CH. J. August 13, 1979

Plaintiff in this civil rights suit alleges that she was un-

constitutionally dismissed from a tenured teaching posi-

tion in the Wissahickon School District. Contending that

4a

Article XI of the Pennsylvania Public School Code pursu-

ant to which she was dismissed, 24 P.S. §11-1101 et seq.,

violates both the due process and equal protection clauses

both facially and as applied, plaintiff seeks injunctive

and monetary relief. I have jurisdiction under 28 U.S.C.

§1343(3) and 42 U.S.C. §1983. The parties have cross-

moved for summary judgment. For the reasons discussed

below, I will deny plaintiff's and grant defendants’ motion.

I.

Plaintiff Barndt was hired by the Wissahickon School

District in June 1964 as a junior high school music teacher.

In July 1973, William Stoutenburgh, Superintendent of

Schools for the Wissahickon District, notified plaintiff that

her professional employee rating for the 1972-1973 school

year was unsatisfactory. In April 1974, the Superintendent

notified Barndt that her 1973-74 performance was again

unsatisfactory. Each notice to plaintiff of her unsatisfac-

tory rating was accompanied by supporting documents.

Shortly after Barndt’s second consecutive unsatisfactory

rating, Superintendent Stoutenburgh submitted to the

Board of Directors of the Wissahickon School District

(School Board) a proposed statement of charges against

plaintiff. Stoutenburgh’s proposal, stating twenty-five

counts of alleged incompetence, negligence and wilfull

violation of school laws, was accepted by School Board

resolution on June 27, 1974. Between September 1974

and January 1975 the Board held fourteen public hearings

on the charges. Barndt was present and represented by

counsel throughout the proceedings. On January 27, 1975,

four days after the last dismissal hearing, the School Board

voted publicly, unanimously and without discussion to ter-

minate plaintiff's employment for the reasons stated in the

twenty-five counts.

5a

Barndt was notified formally on January 29, 1975 by

mail that the Board had found the charges against her

supported by the evidence presented at the fourteen hear-

ings and that her dismissal was therefore being ordered.

Plaintiff appealed her termination to the Pennsylvania

Secretary of Education, who on January 27, 1976 affirmed

the Board's decision. The Secretary's opinion was appealed

to the Pennsylvania Commonwealth Court, which on Feb-

ruary 7, 1977 again affirmed the dismissal decision. Barndt

v. Board of School Directors, 28 Pa. Cmwlth. 482, 368 A.2d

1355 (Cmwlth. Ct. 1977). The Supreme Court of Pennsyl-

vania denied allocatur per curiam in December 1977 and

plaintiff commenced this action in early 1978.

Il.

Plaintiff has moved for summary judgment, arguing that

the Pennsylvania statute under which her employment was

terminated is constitutionally deficient in four facial re-

spects: (A) due process requires that the body responsible

for dismissal decisions be impartial and the statutorily

designated body in Pennsylvania, the district school board,

because of its pecuniary interest in teacher employment, is

not unbiased; (B) judicial appeal de novo from a school

board dismissal decision is not permitted by the statute;

(C) the statute does not specify rules of evidence for a

dismissal hearing and this failure unfairly leaves a teacher

unable to prepare a defense; and (D) the statute is repug-

nant to equal protection principles because tenured and

non-tenured teachers are irrationally treated differently for

dismissal purposes, to the detriment of tenured teachers.

Plaintiff's allegations of facial invalidity are unpersuasive

and I will deny her motion.

(A) “A biased decision-maker [is] constitutionally un-

acceptable [and] ‘our system of law has always endeavored

6a

to prevent even the probability of unfairness.” Withrow

v. Larkin, 421 U.S. 35, 47 (1975), quoting In re Murchison,

349 U.S. 133, 136 (1955). Plaintiff complains that this

axiom of due process is violated by the Pennsylvania stat-

ute. Section 11-1129 of the Public School Code grants

authority to dismiss tenured teachers to the local school

board, a body that has, as employer, a pecuniary interest

in a teacher's discharge allegedly preclusive of impartiality.

The statute for this reason is, Brandt insists, on its face

“constitutionally unacceptable.”

The complete answer to plaintiff's unfairness argument

is citation to Hortonville Joint School District No. 1 v. Hor-

tonville Education Association, 426 U.S. 482 (1976). In

Hortonville, the Court was asked to invalidate as incon-

sistent with due process the dismissal of striking teachers

by a school board that had been negotiating unsuccessfully

with the strikers. Observing that plaintiff teachers “seem

to argue that the Board members had some personal or

official stake in the decision whether the teacher should be

dismissed,” Chief Justice Burger concluded that to fear

that “the Board members had the kind of personal or finan-

cial stake in the decision that might create a conflict of

interest” was not justified. 426 U.S. at 491-92. “[I]n light

of the important interest in leaving with the Board the

power given by the state legislature,” the Court held that

a school board’s pecuniary interest as employer in the ex-

pense of paying a tenured teacher “is not enough to over-

come the presumption of honesty and integrity in policy-

makers with decision making power. Accordingly . . . the

Due Process Clause of the Fourteenth Amendment did not

guarantee [the teachers] that the decision to terminate

their employment would be made or reviewed by a body

other than the School Board.” 426 U.S. at 497.

7a

Barndt correctly urges that the Hortonville case is dis-

tinct from her suit because Hortonville involved only a

policy decision, and not preliminary factfinding by the

school board, the teachers there having admitted that they

were on strike. 426 U.S. at 494. However, this factual

difference is analytically irrelevant to the impartiality con-

cern. Plaintiff offers no reason why the Wissahickon School

Board's pecuniary interest in her employment would im-

permissibly bias its factfinding but not its policymaking

and we can imagine none. The attempted distinction be-

tween the alleged unfairness here and that treated in Hor-

tonville fails, the Supreme Court opinion there is disposi-

tive and plaintiff's first due process argument is rejected.

(B) Section 11-1131 of the challenged statute allows a

teacher aggrieved by a school board decision to petition the

Pennsylvania Secretary of Education for review of the

board action. Section 1132 provides that the decision of

the Secretary of Education may be appealed to the Pennsy]-

vania Commonwealth Court under the judicial review

terms of the Pennsylvania Administrative Law Code, 71

P.S. $1710.41 et seg. Section 1710.44 states that the Com-

monwealth Court “shall hear the appeal without a jury on

the record. ...” De novo appeal to a judicial body is thus

not available to a tenured teacher. Barndt complains that

this absence of de novo judicial appeal “deprives plaintiff

of any effective means to a hearing before an impartial

tribunal.” The dispositive response to this complaint is,

oddly, found in plaintiff's memorandum in support of her

motion for summary judgment. Barndt there acknow}l-

edges “that there is no Constitutional right to an appeal

de novo.” Because the absence of de novo judicial review

implicates no constitutional right, plaintiff's contention that

the statute is in this regard facially infirm fails.

8a

(C) Barndt’s third due process allegation of facial in-

validity is that the failure of the Pennsylvania statute to

prescribe a code of evidence for the conduct of dismissal

hearings deprives teachers of the ability to prepare intelli-

gently their defenses in light of established evidentiary

rules. I hold that plaintiff lacks standing to raise this claim.

Immersion in the conceptual quagmire of standing is not

necessary to conclude that to challenge a statute in federal

court a plaintiff must credibly allege a logical nexus be-

tween the injury suffered and the purported statutory

defect. Flast v. Cohen, 392 U.S. 83, 102 (1968). Review

of the 1,585 page verbatim transcript of plaintiff's dismissal

hearings before the Wissahickon Board compels the judg-

ment that the Barndt proceedings were conducted pursu-

ant to common law rules of evidence and that plaintiff's

counsel handled her case accordingly. Because the stat-

utory failure to speci‘ evidentiary rules thus did not prej-

udice plaintiff in her defense, she fails to satisfy the stand-

ing requirement of a nexus between her dismissal and the

alleged constitutional imperfection in the Public School

Code. I therefore am powerless to hear this part of her

complaint.

(D) Plaintiff's final Fourteenth Amendment challenge

to the facial validity of the statute is her equal protection

argument that tenured teachers are impermissibly treated

differently for dismissal purposes than both non-tenured

teachers and other licensed professionals such as lawyers,

doctors and dentists. This contention too is flawed.

The Public School Code creates various classes of teach-

ers, only one of which is tenured. Unlike dismissal of ten-

ured teachers, which is covered by the School Code, dis-

missal of non-tenured teachers is governed by the local

agency law, 53 P.S. §11301. Local agency law procedures

9a

are not identical to those mandated by the School Code.

Plaintiff argues that the application of different procedures

to dismissals of tenured and non-tenured teachers denies

tenured teachers like herself equal protection of the laws.

The standard against which the challenged differences

in treatment must be measured is succinctly stated in City

of New Orleans v. Dukes, 427 U.S. 297, 303 (1976):

“When local economic regulation is challenged solely

as violating the Equal Protection Clause, this Court

consistently defers to legislative determinations as to

the desirability of particular statutory discriminations

[citations omitted]. Unless a classification trammels

fundamental personal rights or is drawn upon inher-

ently suspect distinctions such as race, religion, or

alienage, our decisions presume the constitutionality

of the statutory discriminations and require only that

the classification challenged be rationally related to a

legitimate state interest.”

The distinction between tenured and non-tenured teachers

touches neither a fundamental right nor a suspect classifica-

tion. Accordingly, the procedural line between tenured

and non-tenured teachers will not be erased unless irra-

tional.

Plaintiff, acknowledging the legitimacy of the state's

interest in designing a dismissal scheme, cites two differ-

ences allegedly exemplary of the irrational discrimination

worked against tenured teachers by the separate proce-

dural regimes: (a) the availability to non-tenured but not

tenured teachers of an appeal de novo to the court of com-

mon pleas, and (b) the local agency law requirement that

the administrative tribunal—the school board here—make

a written decision. Neither difference is irrational.

10a

The local agency law permits, but does not require, the

court of common pleas to hear de novo an appeal from an

agency decision where a full record of the proceedings

below was not made. 53 P.S. §11308a. Where a complete

transcript of the agency proceedings was made, the court

must hear the appeal without a jury on the certified record.

53 P.S. §11308b. All judicial appeals by tenured teachers

are to be heard on the record. 24 P.S. §11-1132; 71 P.S.

§1710.44. However, all dismissal proceedings involving

tenured teachers must be recorded at the school board's

expense. 24 P.S. 11-1127. Therefore, tenured and non-

tenured teachers who are similarly situated—i.e., whose

dismissal hearings have been recorded—are not treated

differently; both are denied a de novo judicial appeal.

The different procedures are applied to different situations

—de novo appeal where there is no record, no de novo ap-

peal where there is. Such a distinction is certainly rational.

Barndt’s second illustration of alleged irrationality is

also unconvincing. Section 11306 of Title 53 requires all

agency adjudications to be in writing. The Public School

Code does not include this requirement. What the School

Code requires instead is that the board furnish the tenured

teacher with a detailed written statement of the charges

against her before the hearing, 24 P.S. §11-1127, and that

written notice of the board’s decision be sent promptly to

the teacher after the hearing, 24 P.S. §11-1130.

Because the notice of dismissal sent to Barndt incor-

porated the earlier twenty-five count statement of charges,

plaintiff received the functional equivalent of a written

adjudication. See III (B) infra. I therefore doubt that

she has standing to complain that such a writing is not ex-

pressly required, she having suffered no prejudice from

that absence. Assuming arguendo only that the claim is

properly raised, I conclude that because a written state-

lla

ment of charges is required in tenured teacher dismissals,

but not in non-tenured cases, to permit simply a written

notice of the board’s decision in a tenured teacher pro-

ceeding, rather than require the written adjudication man-

dated in non-tenured dismissals, is not irrational. Such a

distinction is perhaps not irresistably logical, but it is not

so barren of sense as to justify judicial invalidation.

Finally, I reject plaintiff's contention that tenured teach-

ers are invidiously and irrationally subjected to different

dismissal procedures than are lawyers, doctors and dentists.

Although the procedures are fundamentally different, in

that lawyers, doctors and dentists are statutorily entitled

to a delicensing hearing befo¥e a state board composed in

part of their professional peers, this difference cannot be

said to lack all foundation in reason. Teachers in numerous

and obvious ways are dissimilarly situated to the other

professionals listed—for example, teachers like Barndt are

public employees; lawyers, doctors and dentists ordinarily

are not—and accordingly may be supervised under a sep-

arate set of procedures.

Because each of plaintiff's facial challenges to the Public

School Code fails, I will deny her motion for summary

judgment.

Ill.

Defendants have moved for summary judgment, con-

tending that none of the six issues of fact advanced by

plaintiff as preclusive of summary disposition is genuine.

I agree. Defendants are entitled to judgment as a matter

of law.

Procedurally, plaintiff objects that defendants’ motion

is not accompanied by affidavits as required by F.R.Civ.

P. 56. This objection is wrong for two reasons: (a) de-

12a

fendants’ motion is accompanied by affidavits where rele-

vant; and (b) Rule 56 requires only that a party opposing

a motion for summary judgment counter any aitidavits

presented by the moving party with his own affidavits,

not that a party moving for summary judgment in all cases

support his motion with affidavits. Exhibits, such as ‘the

voluminous ones submitted by defendants here, are suffi-

cient to support a motion for summary judgment.

Turning to the merits of defendants’ motion, the issues

of fact that plaintiff contends are genuine and material,

and the reasons why they are not are as follows:

(A) Barndt alleges that the admission of hearsay tes-

timony at her dismissal hearings unconstitutionally de-

prived her of the due process right of confrontation of

witnesses. Plaintiff has failed to specify the objectionable

statements and the prejudice that they caused, although

she did complain at oral argument that evaluations of her

performance filed by pupils and parents were summarized

by Superintendent Stoutenburgh in his testimony.

I have scanned the 1,585 page transcript of the School

Board hearings and conclude that plaintiff's complaint that

she was exposed to an unconstitutional level of hearsay

is unfounded. The record reveals that Barndt’s counsel

raised hearsay objections, for example p. 718a of defend-

ants’ exhibit 1, and that questions calling for a hearsay

response were withdrawn, for example p. 742a of exhibit 1.

Further, the only evidence that plaintiff cites as objec-

tionable—the complaints lodged against Barndt by pupils

and parents—was not hearsay because admitted not for the

truth of those statements but rather as proof of public

opinion, a material consideration in a dismissal proceeding.

I thus need not reach the question of the constitutionally

tolerable level of hearsay, California v. Green, 399 U.S. 149

(1970), to decide that plaintiffs allegation raises no

genuine issue of material fact.

13a

(B) Plaintiff alleges that the School Board's failure to

present her with a written adjudication of her dismissal

was a violation of due process. The January 29 letter sent

to Barndt by the Secretary of the School Board informing

her of the unanimous vote that she be discharged stated

that the Board found the twenty-five count statement of

charges supported by the evidence heard at the fourteen

dismissal hearings. This incorporating reference in plain-

tiff's dismissal letter to the written charges against her is,

I think, tantamount to a written adjudication of Barndt’s

case and satisfies the requirements of due process.

(C) Plaintiff vaguely alleges that the procedure by

which the School Board accepted the twenty-five state-

ment of charges against her and set the matter for dismissal

hearings was improper. The record discloses not a hint

of constitutionally suspicious proceedings by the Board

and I must conclude that no genuine issue of fact is raised

by this allegation.

(D) Plaintiff alleges that she was denied upon request

various materials necessary to her defense. Although de-

fendants concede that Barndt was denied access to certain

sensitive documents, such as confidential pupil perform-

ance reports, plaintiff does not deny that the information

contained in these papers was made available to her at

the final hearings. I can discern in the record not the merest

suggestion of prejudice to Barndt’s defense caused by this

form of disclosure and I find no genuine issue of material

fact.

(E) Plaintiff objects to the role of the School Board’s

counsel in her dismissal, alleging that he unconstitutionally

served both as counsel to the Board during its adjudication

of her case and as counsel to the Board during her appeal

of the Board’s decision to the Secretary of Education and

the Commonwealth Court. This bizarre contention raises

l4a

neither a genuine nor a material issue of fact, the conduct

of counsel for the Board being both admitted and perfectly

proper. 3

(F) Finally, plaintiff alleges that Superintendent Stout-

enburgh unconstitutionally performed the roles of pros-

ecutor, witness and judge at her dismissal hearings. This

allegation is anchored in the statutory provision granting

the superintendent a seat, but not a vote, on the district

school board, 24 P.S. §10-1081. Barndt argues that because

Stoutenburgh prepared the charges against her and testi-

fied against her at the hearings, his statutory seat on the

Board intolerably commingled the duties of prosecutor and

judge.

I need not consider whether a due process problem arises

where a district superintendent actually takes a seat on

the local board. Defendants have accompanied their mo-

tion for summary judgment with an affidavit given by

Robert Russell, presently Secretary of the Board of School

Directors of the Wissahickon School District and at all

relevant times a member of the Board, swearing that Super-

intendent Stoutenburgh never assumed his statutory seat on

the School Board. Plaintiff has failed to rebut with counter-

affidavit defendants’ sworn statement, and therefore has

failed to put this potentially material fact in genuine issue

as required by Rule 56.

Further, there is nothing in the record from which an

inference of unconstitutional commingling of duties could

be drawn. The School Board hearings on plaintiff's dis-

missal ended on January 23, 1975. No meeting was held

between that time and January 27, 1975. On January 27,

the School Board, in a public meeting, voted unanimously

without discussion to discharge Barndt. The total absence

of discussion by the Board between the end of the eviden-

tiary hearings and the dismissal vote conclusively rebuts

15a

any contention of unfair influence by the Superintendent.

No genuine issue of fact is raised by this allegation.

Barndt’s complaint raises no issues of fact preclusive of

summary disposition and defendants are entitled to judg-

ment as a matter of law. Accordingly, I will grant the

motion for summary judgment filed by defendant Wissa-

hickon School District and joined in by all defendants.

The various other motions filed by individual defendants

will be denied as moot in light of my granting of the

umbrella motion.

/s/ Joseph S. Lord, III

JOSEPH S. LORD, III

CH. J.