Petition — Markot v. Hausner

B1o-26

Otfiee Supeere Court, U.S.

FILED

JULS 1981

ALEXANDER L. STEVAS,

In THE CLERK

Supreme Court of the United States

Ocroser Term, 1981

PATRICIA MARKOT, and HAWTHORNE TEACHERS

ASSOCIATION, a New Jersey Corporation,

Petitioners,

V8.

ROBERT N. HAUSNER, Principal of the Hawthorne

High School HAWTHORNE BOARD OF EDUCA-

TION, JOHN B. INGEMI, former Superintendent of

the Hawthorne School District and JOSEPH LIVA-

TINO, Vice Principal of the Hawthorne High School,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Wru1m §S. Greensere,

Greenserc & MELLE,

Attorneys for Petitioners,

196 West State Street,

Trenton, New Jersey 08608.

(609) 989-9800

Aan G. Keiezy,

On the Petition.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

bee

Questions Presented

1. Whether the dismissal of a public high school teacher

because of the use of a particular, reasonable teaching

methodology is a violation of academic freedom under the

First and Fourteenth Amendments to the United States

Constitution.

2. Whether the mid-year discharge of a public high

school teacher because of the use of a particular, reason-

able teaching methodology, where that methodology was

previously approved by the public employer and was

overtly used by other employees, is a violation of the

right to due process under the Fourteenth Amendment

to the United States Constitution.

ii

Parties to the Proceedings

Patricia Markot and the Hawthorne Teachers Associa-

tion,* petitioners-plaintiffs.

Robert N. Hausner, John B. Ingemi, Joseph Livatino

and the Hawthorne Board of Education, respondents-de-

fendants.

* The Hawthorne Teachers Association is an affiliate of the New

Jersey Education Association.

TABLE OF CONTENTS

Questions PRESENTED

ParTIES TO THE PROCEEDINGS

TaBLE or AUTHORITIES

Ortnions BELow

JURISDICTION z

CoNnSsTITUTIONAL Provisions INVOLVED

STATEMENT OF THE CASE

Reasons For GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO RESOLVE WHETHER THE

USE OF A PARTICULAR, REASONABLE TEACHING METHOD-

OLOGY IS A PROTECTED RIGHT OF ACADEMIC FREEDOM

UNDER THE First AND FourteEENTH AMENDMENTS TO

THE UNitEep States ConSTITUTION WHERE THE METH-

ODOLOGY IN QUESTION IS AS SUBSTANTIVELY IMPORTANT

TO THE TEACHING PROCESS AS THE CONTENT OF THE LIT-

ERATURE BEING TAUGHT

CERTIORARI SHOULD BE GRANTED BECAUSE THE COURTS

BELOW MISCONSTRUED THE CLEAR WEIGHT OF AUTHORITY

WHICH AFFORDS CONSTITUTIONAL PROTECTION TO THE

USE OF A PARTICULAR, REASONABLE TEACHING METH-

ODOLOGY UNDER THE First AND FourTEENTH AMEND-

MENTs TO THE Unitep Srates CONSTITUTION ........-. a

THE INVOLUNTARY DISMISSAL OF PLAINTIFFS’ COMPLAINT

PURSUANT TO Fep. R. Civ. P. 41(b) CREATES A SHARPER

CONFLICT AMONG THE CIRCUITS WHICH CAN ONLY BE

RESOLVED BY AN AUTHORITATIVE RULING OF THIS CoURT

ConcLusIon

13

16

iv TaBLE or AUTHORITIES

PAGE

APPENDIX:

A—Judgment of the United States Court of Ap-

peals for the Third Cireuit la

B—Opinion of the United States District Court

for the District of New Jersey ..................0-+ 3a

C—Judgment of the United States District

Court for the District of New Jersey ............ 14a

Table of Authorities

Cases Cited

Ahern v. Board of Education of the School District

of Grand Island, 456 F. 2d 399 (Sth Cir. 1972) ..10, 11, 14

Barenblatt v. United States, 360 U.S. 109 (1959) ... 7

Bartels v. State of Iowa, 262 U.S. 404 (1923) ............ 7

Board of Regents of State Colleges v. Roth, 408

U.S. 564 (1972) 10

Clark v. Holmes, 474 F. 2d 928 (7th Cir, 1972), cert.

den., 411 U.S. 972 (1973) 14

Dean v. Simpson Independent School District (Slip

Opinion at 11) (E.D. Tex. August 21, 1979) .......... 12

East Hartford Education Association v. Board of

Education of the Town of East Hartford, 562 F.

2d 838 (2nd Cir. 1977) 11, 12,14

England vy. Louisiana State Board of Medical Exam-

iners, 375 U.S. 411 (1964) 4

Epperson v. Arkansas, 393 U.S. 97 (1968) -..............0-0-- 7,15

Healy v. James, 408 U.S. 169 (1972) 7

‘Taste oF AUTHORITIES V

PAGE

Hetrick v. Martin, 480 F. 2d 705 (6th Cir. 1973),

cert. den., 414 U.S. 1075 (1973) 10, 14

Keefe v. Geanakos, 418 F. 2d 359 (1st Cir. 1969) ....8, 11,

12, 14

Keyishian v. Board of Regents, 385 U.S. 598 (1967) ..

Kingsville Independent School District v. Cooper,

611 F. 2d 1109 (5th Cir. 1980) 11,14

Mailloux v. Kiley, 323 F. Supp. 1387 (1971), af-

firmed, 448 F. 2d 1242 (1st Cir, 1971) ceecc.. 7, 11, 12, 14

Meyer v. State of Nebraska, 262 U.S. 390 (1923) ...... 7

Minarcini v. Strongsville City School District, 541

F, 2d 577 (6th Cir. 1976) 10, 11, 14

Parducci v. Rutland, 316 F. Supp. 352 (M.D. Ala.

1980) 8, 11,12

Pico v. Board of Education of Island Trees Union

Free School District No. 26 (Slip Opinion a: 6036-—

6037, 2nd Cir. October 2, 1980) 12

Presidents Council, District 25 v. Community School

Board No. 25, 457 F. 2d 289 (2nd Cir. 1972), cert.

den., 409 U.S. 998 (1972) 14

Shelton v. Tucker, 364 U.S. 479 (1960) 6

Sterzing v. Fort Bend Independent School Dist., 376.

F. Supp. 657 (S.D. Tex. 1972) ono, 11,12

Sweezy v. State-of New Hampshire, 354 U.S, 234 |

(1957) 6,7

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969) 7,11

United States v. O'Malley, 383 U.S. 627 (1966) ....... 15

vi TasLe OF AUTHORITIES

PAGE

Webb v. Lake Mills Community School District, 344

F, Supp. 791 (N.D. Iowa 8th ‘Cir. 1972) ............ 11, 12, 14

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943) 7

Wilson v. Chancellor, 418 F. Supp. 1358 (D. Ore.

9th Cir. 1976) 8, 11,14

United States Constitution Cited

First Amendment i, 2-8, 10, 11, 13

Fourteenth Amendment i, 4-6, 9, 12, 13

Sec. 1 3

Statutes Cited

28 U.S.C.:

See. 1254(1) 2

42 U.S.C. (Civil Rights Act of 1871):

Sec. 1983 4

Rules Cited

Fed. R. Civ. P.:

41(b) 5, 13

Rule 19(b) 15

‘

| NO.

In THe

Supreme Court of the United States

Octoser TERM, 1981

» =

—_

PATRICIA MARKOT, and HAWTHORNE TEACHERS

ASSOCIATION, a New Jersey Corporation,

Petitioners,

vs.

ROBERT N. HAUSNER, Principal of the Hawthorne

High School HAWTHORNE BOARD OF EDUCA-

TION, JOHN B. INGEMI, former Superintendent of

the Hawthorne School District and JOSEPH LIVA-

TINO, Vice Principal of the Hawthorne High School,

Respondents.

>

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioners, Patricia Markot and the Hawthorne Teach-

ers Association, respectfully pray that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the Third Circuit entered in this

proceeding on April 16, 1981.

2

Opinions Below

Petitioners request review of the unreported decision

of the United States Court of Appeals for the Third Cir-

cuit entered on April 16, 1981 by way of judgment order

and without opinion. (Docket No. 80-2504, Third Circuit,

April 16, 1981). The judgment order is reproduced in the

Appendix at p. la, infra.

The decision of the United States District Court for the

District of New Jersey is unreported. The opinion of the

District Court is reproduced in the Appendix at p. 3a,

infra, and the judgment order at p. 14a, infra.

Jurisdiction

The judgment of the United States Court of Appeals for

the Third Circuit was entered on April 16, 1981. This

petition for certiorari has been filed within 90 days of the

date of said judgment, This Court’s jurisdiction is in-

voked pursuant to 28 U.S.C. §1254(1), which states:

“cases in the courts of appeals may be reviewed by

the Supreme Court...

(1) By writ of certiorari granted upon a petition

_of any party to any civil or criminal case, before

or after rendition of judgment or decree.. .”

Constitutional Provisions Involved

The First Amendment to the United States Constitu-

tion provides:

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

3

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably

to assemble, and to petition the Government for

a redress of grievances.”

The Fourteenth Amendment to the United States Con-

stitution, Section 1, 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 where-

in they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities 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 protec-

tion of the laws.”

Statement of the Case

This is a First and Fourteenth Amendment action

brought by a public high school English teacher, Patricia

Markot, and the teachers association of which she was a

member, the Hawthorne Teachers Association, against her

public employer, the Hawthorne Board of Education, a

body corporate, and the principal, vice principal and

former superintendent, individually. Petitioner was dis-

charged in the middle of an academic year because of her

use, on two occasions, of the teaching methodology of

silent reading. Her use of that teaching technique, how-

ever, was in accordance with (a) her approved lesson

plans, (b) the published course of study for English at

the Hawthorne High School and (c) the established aired

of the school administration.

4

Petitioners commenced this action in January, 1980

by filing a complaint in the United States District Court

for the District of New Jersey. The jurisdiction of the

District Court was invoked pursuant to the Civil Rights

Act of 1871, 42 U.S.C. $1983, as an action arising under

color of state law and under the First and Fourteenth

Amendments to the United States Constitution for which

petitioners sought declaratory and injunctive relief, re-

instatement and compensatory and punitive damages. Al-

though plaintiffs previously had commenced an action in

the state courts in 1979, the prosecution of plaintiffs’

federal claims was expressly reserved for proceedings in

the courts of the United States pursuant to England v.

Louisiana State Board of Medical Examiners, 375 US.

411 (1964).

Petitioners’ case was presented in a non-jury trial in

the United States District Court for the District of New

Jersey. Petitioner Markot utilized the teaching tech-

nique of silent reading for a mere 20 minutes on each

of two occasions during February, 1979, in connection

with the teaching of the book 7'o Kill a Mockingbird. She

was subsequently instructed by the principal to discon-

tinue use of the teaching technique of silent reading and,

in accordance with that directive, never again used silent

reading in her classroom. Nevertheless, she was dis-

charged in the middle of the academic year approximately

one week later, some ten days prior to acquisition of

tenure, for the official reason that, “. . . the methodology

of teaching of Patricia Markot, which included extensive

implementation of silent reading, under the circumstances

was not compatible with the best educational interests

of the school district.” The use of the teaching technique

of silent reading, however, had been approved by peti-

tioner’s department chairman and was widely used by

other teachers in the district. Unrebutted expert testi-

5

mony established the educational value and reasonableness

of that teaching methodology, particularly with respect

to the teaching of the novel as a form of literature and

especially in light of the specific approval of that teach-

ing technique by the published course of study for the

English Department. Of equal importance was the con-

clusion by the expert that the particular teaching method-

ology used in silent reading was as substantively im-

portant to the quality of the learning process as the

content of the novel itself.

Defendants thereafter moved for involuntary dismissal

pursuant to Fed. R. Civ. P. 41(b), arguing that plain-

tiffs’ case failed to state a cause of action upon which

relief could be granted. The District Court for the Dis-

trict of New Jersey granted defendants’ motion for in-

voluntary dismissal and held that the use of a partic-

ular, reasonable teaching methodology was not a protected

right of academic freedom under the First and Four-

teenth Amendments to the United States Constitution.

The District Court, whose opinion appears in the Ap-

pendix at p. 3a, infra, found substantive distinction be-

tween restrictions placed upon the content of a particular

course and the methodology employed to teach that con-

tent. The District Court further found that the frequent

utilization of the silent reading teaching technique by

other teachers in the district had no constitutional im-

pact upon her dismissal and that no substantive due pro-

cess rights were implicated as a result of her mid-year

discharge for the reasons stated.

On appeal to the United States Court of Appeals for

the Third Circuit, petitioners argued that the judgment

of the District Court for the District of New Jersey

should be reversed as a matter of law. The Third Cir-

cuit disagreed and entered judgment without opinion, sum-

marily affirming the decision of the District Court.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted to resolve whether the

use of a particular, reasonable teaching methodology

is a protected right of academic freedom under the

First and Fourteenth Amendments to the United States

Constitution where the methodology in question is as

substantively important to the teaching process as the

content of the literature being taught.

The question of whether a particular teaching method-

ology, employed in a reasonable manner, is a protected

right of academic freedom under the First and Four-

teenth Amendments to the United States Constitution is

an inquiry of substantial importance and widespread im-

pact and one which is novel before this Court. The in-

quiry is particularly sharpened where the use of a given

teaching methodology may be as critical to a substantive

understanding of the literature being taught as the actual

content of that literature. This issue is of great con-

cern not only to the litigants, but also to public em-

ployees in general. The important questions of federal

law raised by this petition require that this Court ex-

ercise its discretion and grant the issuance of a writ

of certiorari.

This Court has long held that the vigilant protection

of constitutionally guaranteed freedoms is “nowhere more

vital than in the community of American schools,” Shelton

v. Tucker, 364 U.S. 479, 487 (1960), and that govern-

mental intervention with constitutional rights of members

of the academic community will be deemed particularly

offensive where that interference threatens the flourish-

ing of scholarship and free academic inquiry. Sweezy

v. State of New Hampshire, 354 U.S. 234, 250 (1957);

7

Barenblatt v. United States, 360 U.S. 109, 129 (1959);

West Virginia State Board of Education v. Barnette, 319

U.S. 624, 637 (1943). Further, this Court has historic-

ally recognized the constitutional impermissibility of un-

reasonable restrictions placed upon the teaching of sub-

stantive content. Meyer v. State of Nebraska, 262 US.

390, 400-401 (1923); Bartels v. State of Iowa, 262 US.

404 (1923); Epperson v. Arkansas, 393 U.S. 97 (1968).

It is now well-settled that the First Amendment to

the United States Constitution will not countenance the

imposition of rules or regulations “that case a pall of

orthodoxy” over the classroom, Keyishian v. Board of

Regents, 385 U.S. 589, 603 (1967). The concern of this

Court that teachers and students do not “shed their con-

stitutional rights to freedom of speech or expression at

the schoolhouse gate,” Tinker v. Des Moines Independent

Community School District, 393 U.S. 503, 506 (1969), is

reflected in the well-established doctrine of academic free-

dom. Sweezy v. State of New Hampshire, supra; Key-

ishian v. Board of Regents, supra; Healy v. James, 408

U.S. 169, 180-181 (1972). As this Court stated in Healy

v. James, supra, “... we break no new constitutional ground

in reaffirming this Nation’s dedication to safeguarding

academic freedom.” 408 U.S. at 180-181.

The District Court for the District of New Jersey rea-

soned that the apparent absence of restriction upon course

content, as distinguished from the methodology used to

teach that content, required a finding that no First Amend-

ment values were implicated. That conclusion, however,

is illogical and legally unsound once it is established, by

competent expert testimony,* that the method of teach-

*As to judicial directive concerning the propriety of expert

testimony in an academic freedom setting and the significant weight

to be afforded that testimony, see Mailloux v. Kiley, 323 F. ‘pp.

1387, 1390-1392 (1971) ; affirmed, 448 F. 2d 1242, 1243 (1st Cir.

1971).

8

ing a particular novel, in some cases, may be as im-

portant to a substantive comprehension of the literature

in question as the actual content of the book being taught.

The equation of methodology with content, in the ap-

propriate case, is a well-recognized educational concept

which now requires the analysis and guidance of this

Court in light of the widespread impact of the consti-

tutional implications of that concept upon public employees

and public employers at large and, in particular, upon

the professional educators and public school teachers of

our nation.

Explicit judicial recognition has been given to the neces-

sity of affording First Amendment protection to the use

of a particular, reasonable teaching methodology. In Wil-

son v. Chancellor, 418 F. Supp. 1358 (D. Ore. 1976), a fed-

eral district court set forth the rationale for affording

such protection:

These cases* also recognize the validity of a popu-

lar maxim, “the medium is the message.” The ez-

presser’s medium can affect the persuasiveness of

his message, the duration of its influence, and the

size and type of audience which its reaches. The act

of teaching is a form of expression, and the meth-

ods used in teaching are media. Wilson’s use of

political speakers was his medium for teaching;

similarly, the short story was Parducci’s medium,

the pamphlets were Sterzing’s media, and the ar-

ticle containing the controversial words was Keefe’s

medium. The various school boards which restricted

* Keefe v. Geanakos, 418 F. 2d 359 (Ist Cir. 1969), Parducci

v. Rutland, 316 F. Supp. 352 (M.D. Ala. 1970), and Sterzing

v. Fort Bend Independent School Dist., 376 F. Supp. 657 (S.D.

Tex. 1972).

9

the media employed by Wilson here, and by Keefe,

Parducci, and Sterzing in the cases cited, suppressed

expression which the First Amendment protects.

418 F.Supp. at 1363-1364 (emphasis added)

This Court should grant a writ of certiorari in this case

in order to provide much needed guidance to public school

teachers and professional educators who seek to utilize a

particular, reasonable teaching met!..dology as well as to

provide a directive to the lower federal courts which have

been charged by this Court with the coveted protection of

the classroom as “particularly the ‘market-place of ideas.’ ”

Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

Certiorari should be granted because the courts

below misconstrued the clear weight of authority

which affords constitutional protection to the use of

a particular, reasonable teaching methodology under

the First and Fourteenth Amendments to the United

States Constitution.

The District Court for the District of New Jersey found

that the use of particular, reasonable teaching methodology

was deserving of no constitutional protection and dis-

missed plaintiffs’ complaint. That Court also held that

petitioner’s mid-year discharge as a result of her use of

a previously approved and widely used teaching method-

ology implicated no Fourteenth Amendment due process

considerations. The United States Court of Appeals for

the Third Cireuit summarily agreed, without opinion.

These holdings, however, are legally unsupportable and

are contrary to the clear weight of authority. This Court,

accordingly, should grant a writ of certiorari in order to

rectify the widespread, adverse impact of such a holding

upon the professional educators of our nation’s public

schools.

10

The District Court reasoned that petitioner’s use of a

particular, reasonable teaching methodology implicated

no First Amendment values, relying on Hetrick v. Martin,

480 F. 2d 705 (6th Cir. 1973), cert. den., 414 US. 1075

(1973) and Ahern v. Board of Education of the School Dis-

trict of Grand Island, 456 F'. 2d 399 (8th Cir. 1972). Re-

liance on Hetrick, however, is legally unsound. First, the

Court in that case was largely concerned with the absence

of any expert testimony concerning the extent to which

plaintiff’s teaching methods were “acceptable . . . within

the profession.” 480 I. 2d at 709. In contrast to the plain-

tiff in Hetrick, petitioner Markot presented extensive ex-

pert testimony, unrebutted before the District Court, es-

tablishing that her use of the particular teaching method-

ology in question was not only reasonable, but educationally

prudent. Secondly, the District Court for the District of

New Jersey failed to recognize that Hetrick was decided

in 1973, some thee years prior to the decision by the same

circuit court of appeals in Minarcini v. Strongsville City

School District, 541 F. 2d 577 (6th Cir. 1976) in which the

United States Court of Appeals for the Sixth Circuit af-

firmed the District Court’s approval of constitutional pro-

tection of “individual teaching methodology.” 541 F’. 2d at

584.

Thirdly, the Hetrick Court clearly stated, see 480

F. 2d at 709, that its holding was compelled by the deci-

sion of this Court in Board of Regents of State Colleges

v. Roth, 408 U.S. 564 (1972). The “only question” before

this Court in Roth, however, was “whether the respondent

nad a constitutional right to a statement of reasons and

a hearing on the University’s decision not to rehire him

for another year.” 408 U.S. at 569. This Court specifically

stated in its opinion that the issue of alleged violation of

respondent’s First Amendment right of academic freedom

“is not now before us.” 408 U.S. at 574. Hetrick, there-

1

fore, can provide no sound legal basis for the opinion and

judgment of the District Court, or the summary affirma-

tion of that opinion by the Third Circuit.

The District Court for the District of New Jersey also

relied upon Ahern v. Board of Education of the School

District of Grand Island, 456 F. 2d 399 (8th Cir. 1972)

for the proposition that the use of a particular reason-

able teaching methodology implicates no First Amendment

values. Ahern, however, involved a plaintiff teacher who

engaged in activity so disruptive of the daily function-

ing of the school system that an analysis of her conduct

in light of the two-pronged test of Tinker v. Des Moines

Independent Community School District, 393 U.S. 503,

509 (1969), justified the failure of the United States Court

of Appeals for the Eighth Circuit to invoke the constitu-

tional protections to which the plaintiff otherwise would

have been entitled.

The affirmation by the United States Court of Appeals

for the Third Cireuit of the District Court’s dismissal of

plaintiffs’ complaint was also unsound because of the con-

trary weight of authority which holds that the use of a

particular, reasonable teaching methodology is entitled to

protections of federal constitutional dimension. Keefe v.

Geanakos, 418 F. 2d 359 (1st Cir. 1969) ; Mailloux v. Kiley,

323 F. Supp. 1387 (D. Mass. 1971); affirmed, 448 F. 2d

1242, 1243 (1st Cir. 1971); Parducci v. Rutland, 316 F.

Supp. 352 (M.D. Ala. 1970); Sterzing v. Fort Bend Inde-

pendent School District, 376 F.Supp. 657 (8.D. Tex. 1972),

remanded for reconsideration as to remedy only, 496 F.

2d 92 (5th Cir. 1974); Kingsville Independent School Dis-

trict v. Cooper, 611 F. 2d 1109 (5th Cir. 1980); Minarcini

v. Strongsville City School District, 541 F. 2d 577 (6th

Cir. 1976); Webb v. Lake Mills Community School Dis-

trict, 344 F.Supp. 791 (N.D. Iowa 1972); Wilson v. Chan-

cellor, 418 F. Supp. 1358 (D. Ore. 1976); Hast Hartford

12

Education Association v. Board of Education of the Town

of East Hartford, 562 F. 2d 838, 842-844 (2nd Cir. 1977).

The District Court for the District of New Jersey also

reasoned that the summary discharge of petitioner Markot

for using an approved teaching methodology which simul-

taneously was being used overtly by other employees,

failed to implicate any due process considerations under

the Fourteenth Amendment. As indicated, the United

States Court of Appeals for the Third Circuit affirmed,

without opinion. This result, however, is equally con-

trary to the weight of authority holding that the appli-

cation, without warning, of a performance standard in

direct opposition to prior policy constitutes a denial of

substantive due process. Keyishian v. Board of Regents,

385 U.S. 589, 603-604 (1967); Sterzing v. Fort Bend In-

dependent School District, 376 F. Supp. 657, 662 (S.D. Tex.

1972) ; Mailloux v. Kiley, 323 F.Supp. 1387, 1392; affirmed,

448 I’, 2d 1242, 1243 (1st Cir. 1971); Parducci v. Rutland,

316 F.Supp. 352, 356-358 (N.D. Ala. 1970); Keefe v.

Geanakos, 418 F.2d 359, 362 (1st Cir. 1969); Dean v.

Simpson Independent School District (Slip Opinion at

11, August 21, 1979) (E.D. Tex.); Webb v. Lake Mills

Community School District, 344 F.Supp. at 799, 804-805

(N.D. Iowa 1972); Pico v. Board of Education of Island

Trees Union Free School District No, 26 (Slip Opinion

at 6036-6037, October 2, 1980) (2nd Cir.).

The holding of the court in Sterzing v. Fort Bend In-

dependent School District, swpra, is demonstrative of

the weight of authority which was ignored by the Courts

below in this case:

The Court finds these rights to be evident, the sub-

stantive rights of a teacher to choose a teaching

method, which, in the Court’s view, on the basis

of expert opinion, served a demonstrated educa-

13

tional purpose, and the procedural right of a teach-

er not to be discharged for the use of a teach-

in method which was not proscribed by a regula-

tion or definitive administrative action, and as

to which it was not proven that he had notice that

its use was prohibited, 376 F.Supp. at 662. (empha-

sis added)

A writ of certiorari should issue so that this Court can

provide much needed guidance to the lower federal courts

and to professional educators concerning the extent of

the protective ambit of First Amendment right of aca-

demic freedom.

The involuntary dismissal of plaintiffs’ complaint

pursuant to Fed. R. Civ. P. 41(b) creates a sharper

conflict among the circuits which can only be resolved

by an authoritative ruling of this Court.

There existed a conflict among the circuit courts prior

to the initiation of this litigation concerning the recogni-

tion of a federal cause of action based upon the right of

academic freedom under the First and Fourteenth Amend-

ments and, in particular, based upon the right to utilize

a particular, reasonable teaching methodology. That divi-

sion among the circuit courts, however, has been made

deeper by the ruling of the United States Court of Ap-

peals for the Third Circuit in this case. Until the deci-

sion below dismissing plaintiffs’ complaint for failure

to state a federal cause of action, the Third Circuit had

aligned itself neither with those circuits providing such re-

lief nor with those denying the existence of such a cause of

action, The resultant repudiation of a federal cause of

action by the Third ‘Circuit, however, has created a deep-

ened conflict of greater import to federal litigants than

14

existed previously: the very existence of a federal cause

of action concerning coveted First Amendment rights has

now been jeopardized in a substantive manner.

Most courts, or courts within the respective circuits, hold

that the use of a reasonable teaching methodology, par-

ticularly where that teaching method has been previously

approved by the public employer and as to which no notice

of disapproval has issued, invokes First and Fourteenth

Amendment protection. Keefe v. Geanakos, 418 F. 2d

359 (1st Cir. 1969); Mailloux v. Kiley, 448 F. 2d 1241

(1st Cir. 1971); Hast Hartford Education Association v.

Board of Education of the Town of East Hartford, 562 F.

2d 838 (2nd Cir. 1977); Kingsville Independent School

District v. Cooper, 611 F. 2d 1109 (5th Cir. 1980); Minar-

cini v. Strongsville City School District, 541 F. 2d 577 (6th

Cir. 1976) ; Webb v. Lake Mills Community School District,

344 F. Supp. 791 (N.D. Iowa 1972) (Sth Cir.); Wilson

v. Chancellor, 418 F. Supp. 1358 (D. Ore. 1976) (9th

Cir.).

With the ruling in this case, however, the Third Cir-

cuit has aligned itself with those circuits in which it

is held that no federal constitutional protections are im-

plicated by the use of a particular, reasonable teach-

ing methodology. Presidents Council, District 25 v. Com-

munity School Board No. 25, 457 F. 2d 289 (2nd Cir.

1972), cert. den., 409 U.S. 998 (1972); Hetrick v. Martin,

480 F. 2d 705 (6th Cir. 1973), cert. den., 414 U.S. 1075

(1973); Clark v. Holmes, 474 F. 2d 928 (7th Cir. 1972),

cert. den., 411 U.S. 972 (1973); Ahern v. Board of Edu-

cation of the School District of Grand Island, 456 F. 2d

399 (8th Cir. 1972).

As a result of the decision below by the Third Cir-

cuit, an increasingly deeper division has developed among

the circuits which can only be rectified by the issuance

15

of a writ of certiorari and subsequent guidance by this

Court. This conflict has resulted in a glaring lack of

uniformity throughout the federal system in which most

circuits recognize the existence of a federal cause of ac-

tion extending to protect the use of reasonable teach-

ing methodology, while others do not. That conflict has

also resulted in an increasing inability of professional

educators in our public schools to reasonably know what

teaching conduct is protected and what teaching conduct

may result in termination of employment. The existence

of such imprecise standards and the resultant potential

for the imposition upon teachers of conditions restrictive

of First Amendment academic freedom cannot be tolerated

by this Court. Epperson v. Arkansas, 393 U.S. 97, 105,

107 (1968).

This case presents a more compelling reason for the

issuance of a writ of certiorari than one which does

not reveal such a severe dichotomy between the lower

federal courts with respect to the existence of a federal

cause of action in the first instance. The writ should

issue for that reason, Rule 19(b); United States v. O’Mal-

ley, 383 U.S. 627, 630 (1966), and also since the issues

presented herein are of widespread impact upon the pro-

fessional educators and public school teachers of this na-

tion.

It is respectfully submitted that the judgment of the

United States Court of Appeals for the Third Circuit

is constitutionally infirm.

16

CONCLUSION

For the foregoing reasons, it is respectfully urged

that this Court issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Third Circuit.

Respectfully submitted,

Wurm §. Greensere,

Greenserc & MELLK,

Attorneys for Petitioners,

196 West State Street,

Trenton, New Jersey 08608.

(609) 989-9800

Dated: July 1, 1981

APPENDIX A

Judgment of the United States Court of Appeals for the

Third Circuit

UNITED STATES COURT OF APPEALS

For tae Tarmp Craovir

No. 80-2504

MARKOT, PATRICIA, and HAWTHORNE TEACHERS

ASSOCIATION, a New Jersey Corporation,

Appellants,

v.

HAUSNER, ROBERT N., Principal of the Hawthorne

High School, HAWTHORNE BOARD OF EDUCA-

TION, JOHN B. INGEMI, former Superintendent of

the Hawthorne School District, and JOSEPH LIVA-

TINO, Vice Principal of the Hawthorne High School,

Appellees.

i.

>

On Appeat From tae Uniren States Distaicr Courr

For rue Distnict or New Jersey

D.C. Civil No, 80-00255

Argued March 23, 1981

[1a]

2a

Appendia ‘A

Before:

Hunter, Srovirer and Wispom,* Circuit Judges

JupaMEent Orper

After consideration of all contentions raised by appel-

lants, it is

Apsupaep and Orverep that the judgment of the district

court be and is hereby affirmed.

Costs taxed against appellants.

By the Court,

James Hunter, III, Circuit Judge

Attest:

Satiy Mrvos, Clerk

Date: April 16, 1981

* Honorable John M. Wisdom, United States Circuit Judge for

the Fifth Circuit, sitting by designation.

3a

APPENDIX B

Oral Opinion of the United States District Court

for the District of New Jersey

UNITED STATES DISTRICT COURT

For tue District or New Jersey

i

—

PATRICIA MARKOT and HAWTHORNE TEACHERS

ASSOCIATION, a New Jersey Corporation,

Plaintiffs,

ROBERT N, HAUSNER, Principal of the Hawthorne

High School, HAWTHORNE BOARD OF EDUCA-

TION, JOHN B. INGEMI, former Superintendent of

the Hawthorne Schoo] District, and JOSEPH LIVA-

TINO, Vice Principal of the Hawthorne High School,

Defendants.

(4.90)* Now, these are defendants’ motions for involun-

tary dismissal of the plaintiffs’ case pursuant to Rule 41(b)

* Figures in parentheses refer to each new page of the steno-

graphic transcript.

4a

Appendia B

of the Federal Rules of Civil Procedure. In accordance

with that Rule, I hereby make the following findings of

fact and conclusions of law: ;

(1) The plaintiff, Patricia Markot, hereinafter called

“Markot,” is a citizen of the State of New Jersey, was

employed as a teacher of English at Hawthorne High

School by Defendant Hawthorne Board of Education, here-

inafter “Board,” from March 1976 through February 20,

1979.

(4.91) (2) Markot was hired by the Board for the year

1978-79 school year, by a written contract, for the period

from September 1, 1978 to June 30, 1979. Under New

Jersey law, she would have achieved tenure if she had

remained in the Board’s employ on March 8th, 1979.

(3) Markot is a member of Plaintiff Hawthorne Teach-

ers Association, a co-plaintiff a (sic) duly-recognized and

certified exclusive labor representative of the teachers em-

ployed by the Hawthorne Board of Education.

(4) Defendant, Robert Hausner, hereinafter “Hausner,”

has been employed by Defendant Board since February 1,

1979 as principal of the Hawthorne High School, and had

direct supervisory authority over Markot.

(5) Plaintiff, John B. Ingemi, was at all relevant times

employed by Defendant Board as the superintendent of

schools for the Hawthorne School District, and was re-

sponsible for the general supervision of the district’s

schools.

(6) Defendant, Joseph Livatino, was (4.92) at all rele-

vant times employed by Defendant Board as a vice prin-

cipal of the Hawthorne High School, and had direct su-

pervisory authority over Markot.

5a

Appendiz B

(7) Frank Krueger, “Krueger,” was employed by De-

fendant Board as a department chairman of the English

Department, and had direct supervisory authority over

Markot.

(8) Pursuant to Board policy, Markot was required to

submit her lesson plans to Krueger for approval.

(9) From time to time during the course of her employ-

ment by the Defendant Board, Markot used the teaching

technique of in-vlass silent reading, with the knowledge of

Krueger, she and her students participating therein.

(10) Other English teachers in Hawthorne High School,

and some teachers in the elementary school, upon occasion

had used in-class silent reading, and the technique is re-

garded by some educators, ee experts, as a legiti-

mate teaching technique.

(11) The technique of in-class silent reading was never

either expressly or clearly impliedly approved by the

Board for general use (4.93) in Hawthorne High School.

(12) On January 17, 1979, Krueger approved Markot’s

lesson plans for February 5th and 6th, 1979. Incorporating

by reference lesson plans regarding the teaching of “To

Kill a Mockingbird” which had originally been scheduled

to be taught in October 1978, but had been rescheduled

due to the unavailability of materials in October. (sic)

(13) The lesson plans for the teaching of the novel

“To Kill a Mockingbird” had also been approved by

Krueger on September 18, 1978.

(14) Those lesson plans included a notation “Some class

time will be allowed from time to time for in-class silent

reading.”

6a

Appendia B

- (15) On February 1, 1979, Hausner was first employed

as principal of the Hawthorne High School.

(16) Hausner observed Markot’s Fourth Period English

class on February 5th, 1979 for 20 minutes. And on

February 6th for 20 minutes, each class period lasted 42

minutes.

(4.94) (17) During the portions of the class periods

when Hausner observed Markot’s Fourth Period English

class, the class was engaged in silent reading of “To Kill

a Mockingbird.”

(18) By memorandum dated February 6, 1979, Hausner

directed Markot to meet with him in his office, bringing

her lesson plans for February 6th and 7th, as well as her

unit plan on “To Kill a Mockingbird.” The meeting took

place on February 8, 1979.

(19) On February 6th Hausner had directed Markot

not to use silent reading as a technique. As a result of

Hausner’s directive, Markot ceased using silent reading

as a teaching technique.

(20) Hausner prepared a teacher appraisal, dated Feb-

ruary 13, 1979, based upon his observations on February

5th and 6th. That evaluation indicated that Markot was

not competent and noted that she needed improvement in

12 of 21 areas evaluated.

’ (21) The evaluation was sent to Markot with a letter

from Hausner dated February 14, 1979, in which he in-

formed her (4.95) that because of her unsatisfactory per-

formance on two occasions, and a strong disagreement

with educational philosophy in terms of what is construed

by teacher responsibility and student learning, he was

recommending to the Board of Education that her tenure

be denied,

Ta

Appendia B

(22) Relying on Hausner’s recommendation and teacher

appraisal, Ingemi informed the plaintiff by letter dated

February 15, 1979, that he would recommend to the Board

that it terminate plaintiff’s contract as a teaching staff

member at its meeting to be held on February 20th.

(23) On February 20th, defendants met in closed ses-

sion to discuss Markot’s continued employment. Markét

appeared accompanied by her representative.

(24) By letter dated February 27, 1979, ingemi informed

Markot that the Board had adopted a resolution terminat-

ing her employment the previous day, February 26th, and

denying her tenure.

(25) The reasons given for the Board’s action were that

Markot’s methodology, (4.96) including the use of silent

reading, was not compatible with the best educational in-

terests of the school district.

(26) The letters of Hausner and Ingemi, Hausner’s

teacher appraisal and the Board’s resolution terminating

plaintiff’s employment have been placed in Markot’s per-

sonnel file.

(27) The Hawthorne Board’s action of termination was

affirmed by the Commissioner of Education, who was in

turn affirmed by the New Jersey State Board of Educa-

tion. Both the Commissioner and the State Board ap-

proved the Hawthorne Board’s determination that silent

reading was not an approved teaching technique, and that

philosophical differences existed between Markot and

Hausner. Both appellate tribunals ruled that those fac-

tors justified the Hawthorne Board of Education action.

Conclusions of law:

8a

Appendia B

This Court has jurisdiction over the parties and the sub-

ject matter of this litigation by reason of the provisions

of 28 U.S.C. Section 1343, 2201 and 2202; and (4.97) 42

U.S.C. Sections 1983 and 1988; and the First and Four-

teenth Amendments to the United States Constitution.

Both parties to this litigation have conceded, and this

Court holds, that the primary ground upon which plain-

tiff’s cause of action on Section 1983 rests is the First

Amendment to the United States Constitution. Plaintiffs’

argument is that Markot possesses a First Amendment

right to and interest in the teaching of English literature

by means of the technique of silent reading. This First

Amendment argument has three components.

First, plaintiffs assert that Markot, as a matter of Fed-

eral constitutional (First Amendment) law, had a right

to employ silent reading as a teaching method.

Second, plaintiffs claim that Markot’s termination for

exercising this alleged constitutional right deprived her of

liberty in violation of the Fourteenth Amendment’s guar-

antee of substantive due process.

Third, plaintiffs claim that Markot’s termination for

using silent reading denied (4.98) her the Fourteenth

Amendment right to equal protection of the laws, in that

other teachers at Hawthorne employed silent reading and

were not terminated.

Additionally, plaintiffs claim that Markot had a sub-

stantive due process liberty interest in having her person-

nel file free of substantial false information, and a sub-

stantive due process property interest in her continued

employment.

These legal assertions will be addressed seriatum:

9a

Appendia B

(1) After a careful review of the cases cited by both

sides to this controversy, this Court is of the opinion and

so holds, that the First Amendment’s protection of free-

dom of expression in the academic community does not

extend to insulate from review by a teacher’s superiors,

the methods as opposed to the substantive content of her

instruction. This Court is of the opinion that all of the

cases cited in plaintiffs’ brief which allegedly support

plaintiffs’ claim are distinguishable. In all of said cases,

the courts were concerned (4.99) with and generally in-

validated on First Amendment grounds, restrictions placed

upon the content as opposed to the methodology of the

teachers courses. For example, restrictions on the books

he or she assigned, or upon the free discussion and dissem-

ination by the teacher of politically controversial ideas.

Plaintiffs’ claim that a teacher’s methodolgy is an issue

of academic freedom within the intendment of the First

Amendment, is simply unsupported in the holdings of the

cases in plaintiff’s own brief.

This Court finds reasoned guidance for its holding that

the silent reading method implicates no First Amendment

values in Hetrick v. Martin, 480 F.2d 705 (Sixth Cireuit),

certiorari denied, [414] U.S. 1075 (1973), and in Ahern v.

the Board of Education of Grand Island, 456 F.2d 399

(Seventh Circuit 1971), cases which are not cited by the

plaintiffs. In both of those cases the courts held that the

non-tenured teachers in question had no First Amendment

or substantive due process rights to pursue a method of

teaching which contravened the (4.100) dictates of their

employers regarding classroom procedures. Hetrick, supra

at pages 708-09; Ahern, swpra at 403 and 404.

This Court’s holding is in no manner affected by the fact

that several Hawthorne teachers have employed silent

10a

Appendix B

reading. The mere fact that a person has engaged in a

certain practice obviously does not talismanically convert

that practice into a Federal constitutional right. See Het-

rick, supra page 709. Constitutional rights do not emanate

from custom or fashion.

Second, having concluded that Markot had no First

Amendment right to employ silent reading as a teaching

method, it follows that she was not deprived of liberty

within the meaning of the Fourteenth Amendment, by not

being permitted to use this method.

Three, plaintiffs’ Fourteenth Amendment equal protec-

tion argument is also rejected. Since Markot neither as-

serted nor established the existence of any constitutional

suspect classification, and since this Court has already con-

cluded that she (4.101) has not been deprived of any fun-

damental constitutional right by not being permitted to

use silent reading, the only inquiry is whether the Board’s

decision to terminate had a rational basis. Harrah Inde-

pendent School District v. Martin, 440 U.S. 194, at 199

(1979), a per curiam, The Court concludes that the Board’s

decision was rational. Clearly the Board has the right

and the authority to decide that it does not wish to em-

ploy a teacher who employs a teaching method dissonant

to what the Board considers established and conventional

practices. The fact that other teachers in Hawthorne oc-

casionally employed silent reading, and that the method

is accepted by some experts as valid, does not render the

Board’s decision irrational or arbitrary in a constitution |

sense, for this Court has found no compelling evidence

that the Board was aware of and approved the use of this

method by teachers other than Markot. Again, just be-

cause Markot’s teaching style is considered acceptable by

some within the teaching profession does not mean that

lla

Appendix B

the (4.102) Board acted arbitrarily in refusing to insulate

her style from its review in determining whether she mer-

ited continued employment or tenured status. See Het-

rick, again at 709.

Moreover, this Court will not undertake a de novo re-

view of whether silent reading should be a teaching method

approved by the Hawthorne Board, for this is precisely

the sort of academic terrain upon which a Federal Court

must not tread. Doherty v. Rutgers School of Law New-

ark, 487 Fed. Supp. 1291 at 1297 note 4, decision by this

Judge. See also Chung v. Park, 514 F.2d, 382, at 387, note

8 (Third Cireuit 1975) ; Keddie v. Pennsylvania State Uni-

versity, 412 Fed. Supp. 1254 at 1270 (Middle District of

Pennsylvania 1976).

Four, Plaintiff Markot’s claim that she possesses a sub-

stantive due process liberty interest in having her per-

sonnel file free of false information can be quickly dis-

posed of. Plaintiff Markot would have cause to complain

only if the file contained “substantially false information

(4.103) with respect to her work performance or the rea-

sons for her discharge.” Ledford v. DeLancey, 612 F.2d

883, page 887 (Fourth Circuit 1980).

However, plaintiffs’ claim regarding the personnel file

hinges on the assumption that statements in the file that

Markot was dismissed on account of her teaching method

and her incompetence are substantially false. With regard

to statements concerning her teaching method, the Court

has already concluded that this was a rational reason for

the Board to dismiss. Accordingly, these statements do

not meet the “substantially false” requirement. With re-

gard to statements in the file to the effect that Markot was

dismissed for incompetence, the Court notes that such

statements apparently represent the subjective judgment

12a

Appendix B

of Markot’s superiors, including the Board. This Court is

not permitted to substitute its own subjective judgment,

whatever it may be, of Markot’s competence as a teacher

for the judgments of her employer. See generally Board

of Curators of University of (4.104) Missouri v. Horowitz,

435 U.S. 78, at page 91, (1978), quoting Epperson v. Arkan-

sas, 393 U.S. 97, at page 104 (1968). Courts may not serve

as super-tenure review committees. Keddie, supra at page

1270. Thus, the Court cannot hold that statements in Mar-

kot’s personnel file impugning her competence, as a mat-

ter of law or fact, are substantially false. It follows that

no substantive due process liberty interest of Markot’s has

been violated.

Five, turning finally to plaintiffs’ claim that Markot had

a substantive due process property right in continued em-

ployment, the short and dispositive answer to this is that

she was non-tenured at the time of her dismissal, and thus

had nothing more than a unilateral expectancy of con-

tinued employment.

Board of Regents v. Roth, 408 U.S. 564, page 577 (1972).

Looking to New Jersey law, and I must under Roth, supra,

this Court holds that plaintiff was an employee terminable

at will, subject only to the contractual requirement that

she be given 60 days notice. (4.105) See Mozier v, Board

of Education of Cherry Hill Township, 450 Fed.Supp. 742

at 748, this court, (1977); Canfield v. Board of Education

of Pine Hill Borough, 51 N.J. 400 (1968). In light of the

above analysis, this Court does not reach the issue of col-

lateral estoppel.

For all of the foregoing reasons, plaintiffs’ complaint

must be dismissed, with prejudice.

18a

Appendiz B

Exercising its discretion, the defendants’ request for at-

torneys’ fees under 42 U.S.C. 1988 are denied. Each side

to bear its own costs.

Defendants shall prepare an appropriate order forth-

with. So ordered.

(Court adjourned.)

Ida

APPENDIX C

Judgment of the United States District Court for the

District of New Jersey

UNITED STATES DISTRICT COURT

For True District or New JERSEY

’s

~~

PATRICIA MARKOT and HAWTHORNE TEACHERS

ASSOCIATION, a New Jersey Corporation,

Plaintiffs,

vs.

ROBERT N. HAUSNER, Principal of the Hawthorne

High School, HAWTHORNE BOARD OF EDUCA-

TION, JOHN B. INGEMI, former Superintendent of

the Hawthorne School District, and JOSEPH LIVA-

TINO, Vice Principal of the Hawthorne High School,

Defendants.

This matter having been tried before the Court on July

29 and 30, 1980 and August 4 and 5, 1980, and the plaintiffs

having been represented by Greenberg & Mellk (William

S. Greenberg, Esq. appearing) and defendants Hausner,

Ingemi and Livatino being represented by Schenck, Price,

Smith & King (David B. Rand, Esq. and Robert M. Tosti,

Esq. appearing) and the defendant Hawthorne Board of

Education being represented by Jeffer, Hopkinson & Vogel

15a

Appendia C

(Reginald F. Hopkinson, Esq. appearing); and all de-

fendants having moved for an involuntary dismissal of

all claims asserted by plaintiffs at the conclusion of plain-

tiffs’ case based upon the provisions of Fed.t.Civ.P. 41(b) ;

and the Court, as the trier of fact, having considered the

evidence presented during the plaintiffs’ case as well as

the applicable law, and having further rendered an oral

decision in connection with the motion on August 5, 1980,

which included findings of fact and conclusions of law as

required by F'ed.R.Civ.P. 52(a); and the Court having cle-

termined that upon the facts and the law plaintiffs have

shown no right to relief and that defendants are entitled

to a judgment of dismissal ;

Now, TxHererore, in accordance with the oral decision,

findings of fact and conclusions of law rendered by the

Court as aforesaid;

Tr Is on this 25 day of August, 1980, Onperep, Decreep

anp Apsupcep that judgment of no cause for action be and

is hereby entered in favor of all defendants dismissing

with prejudice all claims asserted by plaintiffs against all

defendants in this action; and

Tr Is Furruer Onverep that the within judgment of dis-

missal shall be without costs to any party and that de-

fendants’ application for counsel fees and costs as “pre-

vailing parties” pursuant to the provisions of 42 U.S.C.

$1988 be and is hereby denied.

Lawrence A, Wurrrte, U.S.D.J.