Opposition Brief — Cooper v. Williamson County Board of Education

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No. 90-1291

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1990

FREEMAN M. Cooper,

Petitioner,

VS.

WILLAMSON CouUNTY BOARD OF EDUCATION,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Corrt of Tennessee

RESPONDENT'S BRIEF IN OPPOSITION

RoBeERT G. WHEELER, JR.

Bank of Goodlettsville, Suite 201

112 Long Hollow Pike

Goodlettsville, TN 37072

Counsel for Respondents

St. Louis Law Printing,Inc. 1%307ManchesterRd. St. Louis,MO 63131 314-231-4477

LE COPY am

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QUESTIONS PRESENTED FOR REVIEW

Do the pre-termination hearings afforded the Petitioner

before the School Board and Chancery Court meet the

requirements of the Due Process Clause of the United

States Constitution?

Were the pre-termination proceedings in this case so unfair

as toovercome the facts justifying the Petitioner’s dismissal?

aaa

PARTIES TO PROCEEDINGS BELOW

The statement submitted by the Petitioner on page 11 regard-

ing the parties to the proceedings below is correctly stated with

no additions or corrections stated thereto by the Respondent.

— Ili—

TABLE OF CONTENTS

Questions Presented for Review ......................cccccccc00s0

PUNtROE OD PHOCOGTINES TICIOW ..............000..ssscescrersessensness

es ceckuasibeaadewactenes

IE IR SE aC

Summary of Reasons for Denying The Writ... —

Ce eo isd cas easnsnbennpuaiunstnhains

a daseeabentineeeh

od ks ie. vk vgeniananinsabesnséastinavans

ai aca calsekcaddeuiuihadsneacanaddnusdnsenehinans

Management Action Plan ..................:ccseceeeceeeeeeeees

SE a Eo

Response to Oral and Written Directives ..............

a iadlea cy eats shen iunpigexsxckssunkaddsvesnnnioanisnsndiasies

I.

II.

The Decision of the Supreme Court of Tennes-

see 1S not in conflict with the Loudermill

Se ea PN TA nL

The Petitioner has not established that the

Board acted in a manner so as to render it

biased or prejudiced in carrying out its statu-

tory duties in relation to the discharge

1,2

10-12

IIT.

IV.

aaa bane

The Petitioner was afforded notice and a

meaningful opportunity to respond to the

charges during a full Board hearing and a de

novo Chancery Court proceeding prior to

I stshcsnhenianiscichiananciicipantviineIpaniannsieanecen

The Petitioner has failed to demonstrate that

there is a conflict among Federal Courts of

Appeal in the application of the Constitutional

Due Process pre-requisites of Loudermill in

cases where post-deprivation review is substi-

tuted for pre-deprivation notice and opportu-

Be By I iiieaccaciccennicdsercesncesindunctosvavunictans

| IEEE REC eel ee PP a Pie rs ae ee?

19-2]

TABLE OF AUTHORITIES

Page

Cases:

Brasslett v. Cota, 761 F.2d 827 (1st Cir. 1985)... 29

Cafeteria Workers v. McElroy, 367 U.S. 866 (1961) ... 29

Cleveland Board of Education v. Loudermill, 470 U.S.

EN IEE sakes erincnieoemioiens 1,10,12,18,23,24,25,26,27

Cooper v. Williamson County Board of Education

Middle District of Tennessee, Docket No. 3-80-3393

Oe, I ssciesccsaccinehtccseae ute weiner: 3

Cooper v. The Williamson County Board of Education,

74 3.W.24 176 (Tenn. 1987) .......050:...000000 2,3,11,29,30

Cooper v. Williamson County Board of Education, 803

S.W.2d ZOD (Team. 1990) ..c.esicicsincecvisieiscsces 2,3,11,29,30

Duchesne v. Williams, 849 F.2d 1004 (6th Cir. 1988)

cert. denied, 109 S. Ct. 1535 (1989) .................. 26,27,28

Fetner v. City of Roanoke, 813 F.2d 1183

SUN, FOG Da caicxicsincinaasonsstuskaneunigiceeeaeveslonsions 24

Garraghty v. Jordan, 830 F.2d 1295 (4th Cir. 1987) ...25,26,27

Harrah Independent School District v. Martin, 440 U.S.

FO EID aiscsnrcseieussssaniedinnialcn telaneaemaaacael 18

Hortonville Joint School District No. 1 v. Hortonville

Education Association, 426 U.S. 482 (1976) ..... 16,1829

Kercado-Melendez v. Aponte-Rogue, 829 F.2d 255

PEGE EG DED sicucicovereverespuiar ema tuinciee 23,24

Matthews v. Harney County, Oregon School District No.

©, BED 2 BOD Ce, TI) ois nso co npcssssvccencane 19,20,21

—

Miller v. City of Mission, Kansas, 705 F.2d 368

CR MEINEL IIE xccicscicsksurstgchosentvacceideracoiecuant 12,14,15,16

Moore v. Warrick Public School District No. 29, 794

Pe Bee CU ae CIEE Sacsnnscnckccsaccncnsdccacinnttnles 18

O’Brien v. DiGrazia, 544 F.2d 543 (1st Cir.

ary OE, GI, SI incense sacxiaecibkns 29

O’Brien v. Jordan, 431 U.S. 914 (1977) woo. 29

Perkins v. Board of Directors, 528 F. Supp. 1313 (D.M.

1981) aff'd, 686 F.2d 49 (1st Cir. 1982) .....00000... 29

Sanders v. Vinson, 558 S.W.2d 838 (Tenn. 1977)........ 30

Schaper v. City of Huntsville, 813 F.2d 709

bE ee , ys RE OC ew sede tells acorns 25,27

Schultz v. Baumgart, 738 F.2d 231 (7th Cir. 1984) ...... 23,24

Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977) cert.

CREE, SOF Us EE sectsventrcoicaon 12,13,14,15,16

Turk v. The Franklin Special School District , 640 S.W.

OO E06 CE, TEE ctreneicrrimivniteeniins 10,30

Wagner v. Elizabethton City Board of Education, 496

ae OF: OS CH, TITY cccisissinsinsrxcrcvariserbics 30

Williams v. Pittard, 604 S.W. 2d 845 (Tenn. 1980)...... 30

Withrow v. Larkin, 421 U.S. 35 (1975) oo... 13,17

— vli—

Statutes:

Tennessee Code Annotated 8-44-101 ef. seq. ............... 3

Tennessee Code Annotated 49-5-511(5) ..................0 15

Tennessee Code Annotated 49-5-513 (i)....................64. 2,3,12

Tennessee Code Annotated 49-2-301(10)..................... 17

Tennessee Code Annotated 49-5-523(e) ..................0005 11

No. 90-1291

IN THE

Supreme Court of the United Siates

OcToBER TERM, 1990

FREEMAN M. Cooper,

Petitioner,

VS.

WILLIAMSON COUNTY BOARD OF EDUCATION,

Respondents.

Petition for a Wnt of Certiorari to the

Supreme Court of Tennessee

RESPONDENT?’S BRIEF IN OPPOSTION

SUMMARY OF REASONS FOR DENYING THE WRIT

The Petitioner was afforded more than the basic process due

him prior to his dismissal as a tenured teacher from the Williamson

County School System.

Examined factually, the Circuit Court cases cited by the

Petitioner do not show a split in the due process requirements of

pre-termination procedures as set forth in Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985).

Inadequate proof exists in this record to show that the entire

twelve member School Board was so biased and prejudiced as to

nullify the entire proceedings on Constitutional grounds.

|

)

|

The Tennessee Supreme Court remanded the case to Chan-

cery Court to allow the Petitioner further opportunities to present

his case while on suspension. After examining the facts on a

second appeal, the Court was justified in finding that the

Petitioner’s dismissal was supported by a preponderance of the

evidence and that all procedural and substantive due process

requirements had been met.

OPINIONS BELOW

‘his case has been before the Tennessee Supreme Court

twice. Cooper v. The Williamson County Board of Education, 746

S.W.2d 176 (Tenn. 1987), is correctly reprinted at Appendix C

of the Petitioner’s Writ, pages A-19 through A-32. Itis hereinafter

referred to as Cooper J.

The second appeal to the Tennessee Supreme Court, Cooper

v. Williamson County Board of Education, 803 S.W.2d 200, was

decided on September 17, 1990. Petitioner’s request for a

re-hearing was denied on November 13, 1990. The second

Tennessee Supreme Court decision is correctly reprinted at

Appendix A of Petitioner’s Writ, pages A-1 through A-12. It is

hereinafter referred to as Cooper //. The denial of a rehearing is

correctly reprinted on page A-39 in Petitioner’s Appendix.

STATEMENT OF THE CASE

PROCEDURAL HISTORY

After the Petitioner (Cooper) was dismissed by the Williamson

County Board of Education (Board), he appealed his dismissal

to the Chancery Court of Williamson County, Tennessee. That

matter was tried before Chancellor Bell on November 5, 1986.

A memorandum opinion issued from that trial on January 5,

1987, sustaining the Board’s action in dismissing Cooper. (See

Appendix B to Petitioner’s Writ). The case was appealed

directly to the Tennessee Supreme Court pursuant to T.C.A.

49-5-513(i). That Court found in favor of the Board on the issue

|

a

of the Tennessee OpenMeetings Act violations, T.C.A. 8-44-101,

et. seq., and on the issue that Cooper was denied due process of

law. (See Appendix C to Petitioner’s Writ). The Tennessee

Supreme Court remanded the matter back to Chancellor Bell for

a new hearing on the merits after it opined that the Chancellor’s

method in hearing the case deprived Cooper of his right to a

hearing de novo under the statutory scheme set forth in T.C.A.

49-5-513. Cooper I.

The case was tried a second time on December 13 and 14,

1988. On January 24, 1989, Chancellor Bell issued a second

memorandum opinion again sustaining the action of the Board in

dismissing Cooper from the System. (See Appendix D to

Petitioner’s Writ). The matter was appealed again to the Tennes-

see Supreme Court pursuant to T.C.A. 49-5-513(i). That Court

decided the case in favor of the Respondent finding that Petitioner

had been afforded the necessary de novo review, due process had

been met, and the Board proved its case by the required prepon-

derance. A Petition for re-hearing was subsequently denied.

Cooper Il. (See Appendix A to Petitioner’s Writ and page 39 of

the Writ).

FACTUAL HISTORY

The Board does not dispute the facts stated in Cooper’s

Petition regarding his length of service as a teacher with the

Board nor does it contest his tenure status and the fact that he

became a principal for the Board pursuant to the order of U. S.

District Judge Thomas Wiseman in a Title VII action filed by

Cooper. Cooper v. Williamson County Board of Education. etal,

No. 3-80-3393. However, considerable additions and/or cor-

rections are supplied here to supplement and clarify the Statement

of Facts filed by Cooper.

Cooper began his Fairview High principalship in the fall of

1984. His refusal to cooperate began early on in his principalship

there.

aan” ee

On September 4, 1984, Cooper requested Fleming’s atten-

dance at Fairview High School but refused to tell Fleming, upon

inquiry, why he wanted him there the following day. (D.C. Tr. p.

730, 11. 10-23). It was not until Fleming arrived at school the

next day that he learned that Cooper wanted him to speak to the

faculty and staff. Fleming then asked Cooper what was to be the

subject on which he was to address the faculty. (D.C. Tr. p. 731,

11. 2-22). Only at Flemings’s insistence did Cooper state that

he had received several reports that members of the faculty were

encouraging student walkouts. (D.C. Tr. p. 732, 11. 1-6).

Flerning asked for the names of the specific teachers so those

teachers could be addressed rather than the entire faculty. Coo-

per refused to give Fleming any of the teachers’ names. (D.C. Tr.

p. 732, 11. 6-22). Fleming, despite lack of notice, spoke to the

faculty and staff. Cooper then praised Fleming in front of the

faculty for the manner in which he handled the situation. Cooper

later filed an EEOC complaint against Fleming complaining of

the manner in which Fleming handled the meeting. (D.C. Tr. p.

734, 1.5 to p. 735, 1. 22; pp. 23-25; p. 736, 11. 3-5; p. 527, 11.

5-8).

Upon learning on November 7, 1984, that the students had

exited the school, Fleming immediately went to Fairview High

School to check on the situation. (D.C. Tr. p. 530 1. 25). Finding

the students back in the building and generally orderly, Fleming

sent for Cooper, who was attending an optional Principal’s

meeting, asking thathe return to the school so that he could assist

in dealing with student concerns. (D.C. Tr. p. 532 11. 4-21).

During and after this incident, Fleming reminded the students at

Fairview High that Cooper was the principal of the school and

they must so recognize him. (D.C. Tr. p. 531, 11. 12-16).

On that evening of November 7, 1984, Cooper granted an

interview with Ralph Dawson of THE NASHVILLE TEN-

NESSEAN and in it Cooper publicly blamed the student walkout

on the faculty, a fact he later denied and then subsequently

affirmed. (D.C. Tr. pp. 746, 1. 6-p. 757, 1. 10).

a,

In the midst of the turmoil that occurred at Fairview on

November 7, 1984, and the two days following, Cooper an-

nounced to Fleming that he had previously requested leave for

the following two days and that he would not be at school. (D.C.

Tr. p. 741, 11, 15-25). Fleming reminded Cooper of the serious-

ness of the situation at the school and that none of it had been

contemplated when the leave request had been submitted. He

stressed to Cooper the need to be present the next day. (D.C. Tr.

p. 742, 11. 1-13). Cooper insisted that he had to be away. Finaliy,

in response to a telephone call to Cooper’s home that night,

Cooper reluctantly agreed to be at the school the next morning.

(D.C. Tr. p. 747, 1. 19-p. 748, 1. 13).

Against this factual backdrop, charges were initially brought

against Cooper before the Board in January of 1985. They were

the subject of a multi-night hearing that ended on April 1, 1985.

The charges were dismissed by the Board and Cooper remained

as the principal of Fairview High School. All parties were

admonished by the Board’s Chairman to work together for the

success of Fairview High. (D.C. Tr. pp. 372-378).

MANAGEMENT ACTION PLAN

A management action plan (M.A.P.) was requested by Board

Member Neil at the conclusion of the first hearing. He stated that

its purpose was to assist Cooper. (D.C. Tr. p. 351,1. 12-p. 352,

1.4). Cooper had never been a high school principal. (D.C. Tr.

p. 254, 11. 9-19).

When the M.A.P. was finally approved on August 7, 1985,

Fleming instructed Cooper to distribute it to the Fairview High

faculty. (R. Exhibit 1., p. 50, 11. 11-16). After several written

directives were sent from Fleming to Cooper to distribute the

M.A.P. to the faculty, Cooper told Fleming on October 25, 1985,

that he would distribute the M.A.P. to the faculty within 10

minutes to 30 days after he returned to work from sick leave. (R.

Exhibit 1, p.52, 1.21-p.53, 1.11). Cooper finally distributed the

—

M.A.P. to his faculty on November 19, 1985, after having

received eleven different instructions to do so. (R. Exhibit 1, p.

53, 11. 16-21; p. 54, 11. 3-5).

Cooper was required to provide to the Superintendent a report

of his progress on the M.A.P. so that Fleming could incorporate

that into his report to the Board for the October 14, 1985,

meeting. (R. Exhibit 1, p. 42, 11. 18-24). Fleming never

received a report from Cooper for that meeting, nor for the Board

meeting of October 21, 1985, or November 6, 1985. (R. Exhibit

1, p. 43, 1. 21-p. 44, 1. 5). Fleming did not see Cooper’s report,

much of which pertained to routine matters and sketches of

cheerleader jumps rather than material required by the M.A.P.,

until Cooper submitted it to the Board on November 25, 1985.

(R. Exhibit 1, p. 44, 1. 19-p. 45, 1. 2; see additional Exhibit B.1

submitted by Cooper in his Offer of Proof). Prior to the

submission of this report to the Board, and during the time

Fleming requested Cooper’s input, Cooper, while on sick leave,

delivered to THE NASH VILLE TENNESSEAN alengthy press

release which constituted his response to Fleming’s bi-monthly

report. (R. Exhibit 1, p. 45, line 1-9; p. 47, line 21).

SICK LEAVE

From the time of April i, 1985, until November 25, 1985,

Cooper missed 67 work days. He does not dispute those figures.

(R. Exhibit 1. p. 17, 11. 3-5, p. 361, 11. 20-p. 352, 1. 1).

Questions about the status of his health and requests for

specific information about his health were made in writing on

April 22, 1985, November 7, 11 and 13, 1985, (R. Exhibit 1, p.

18, 11. 2-25), and verbally on April 10, 16, and 29, and Novem-

ber 6, 1985. (R. Exhibit 1,pp. 19-20; pp. 31, 1. 19-p. 33, 1. 10).

Cooper was admitted to the hospital in the spring of 1985, under

an assumed name and the first time the Board heard from

Cooper’s doctor in person, or heard any specific reasons from nis

doctor for his absences, was in preparation for the Contempt of

LL ————————

Poe

Court hearing (filed by Cooper) in Federal Court in May of 1986.

(12-13-88 Tr. p. 184).

In the midst of his sick leave in October, 1985, Cooper took

two personal leave days and went io Columbia, Tennessee. (R.

Exhibit 1, p. 21 11. 3-17; p. 464, 11. 6-24). Earlier, Cooper had

notified Fleming that he--Cooper--would be out until further

notice or after his re-examination on June 7, 1985. Two days

before the June 7th re-examination deadline, Cooper attended a

career-ladder seminar at Brentwood High School in order to

qualify for a $1,000.00 salary supplement. (R. Exhibit 1, p. 29,

1. 5-p. 30, 1.5). Finally, while Cooper did not attend graduation

at Fairview High on June 4, 1985, claiming ill health, he did

attend the aforementioned career-ladder seminar the next day.

(R. Exhibit 1, p. 377, 1. 7-p. 378, 1. 10).

The Board first learned that Cooper had been seen by Dr.

Jordan, a psychiatrist, in 1985, when his physician (Dr.

Alexander's) deposition was taken in April of 1986. (12-13-88

Tr. p. 248). Dr. Jordan did no psychological testing. (12-13-88

Tr. p. 248). He did, however,find that in the spring of 1985

Cooper was stable, emotionally secure, a gentlemen who was

functioning quite well froma psychological standpoint. (12-13-88

Tr. p. 231).

Dr. Jordan further noted and submitted in a written report the

following:

“However, he indicates he has an interest in removing

himself from the school system as soon as possible. As you

know, he’s an ordained minister in the African Methodist

Episcopal Church and has pastored in the past. He says that

he is going to contact his bishop and make known his

availability, such that, when he can be given an appointment

which he feels is comfortable to his needs, he will resign

from the school system and go into an active full-time

ministry. He has indicated an interest in doing this as of the

summer of 1986.

way te

(12-13-88) Tr. p. 246). Dr. Jordan felt that this was a good plan

for Cooper. (12-13-88 Tr. p. 238). Cooper’s previously ex-

pressed desire to leave the school system (as he had stated earlier

to Dr. Jordan) spawned settlement discussions in August, 1985,

that were initiated by his attorneys. (12-13-88 Tr. p. 342).

RESPONSE TO ORAL AND WRITTEN DIRECTIVES

On October 11, 1985, Fleming contacted Cooper about meet-

ing for a Board/State required principal evaluation conference.

(R. Exhibit 1, p. 73, 11. 16-21). Cooper told Fleming he would

not meet with him. (R. Exhibit 1, p. 177, 1. 9-p. 178, 1. 5).

Fleming contacted Cooper on October 18, 22, 25, 1985, and

November 11, 1985, trying tc schedule the evaluation confer-

ence. (R. Exhibit 1, p. 73, 1.21-p. 75, 1.4). The couference was

finally held on November 19, 1985. (R. Exhibit 1, p.75, 11. 1-4).

At the conclusion of a meeting on October 9, 1985, between

Cooper, Fleming, Jan Daugherty, a teacher at Fairview High and

her representative, Walt Olsen, Fleming directed Cooper to

remove from her personnel file a written reprimand that Cooper

had issued to Daugherty. (R. Exhibit 1, p. 60, 1. 21-p. 61, 1. 3).

Fleming issued a written notice on October 10, 1985, to Cooper

following up on the previous oral directive. (R. Exhibit 1, p. 61,

11. 10-14). Fleming established a deadline of October 16, 1985,

for Cooper to respond to the oral and written directives. (R.

Exhibit 1, p. 6, 1. 23-p. 62, 1. 1). On October 25, 1985, and

November 6, 1985, Cooper told Fleming that he had nui decided

whether he would comply with Fleming’s directives to remove

the reprimand. (R. Exhibit 1, p. 62, 11. 9-13; p. 62, 11. 16-20).

On November 18, 1985, Cooper told Fleming that he had pulled

the reprimand from Daugherty’s file. During the dismissal

hearing, Cooper stated that he had actually removed the repri-

mand from Daugherty’s file immediately upon return from the

October 9th meeting. (R. Exhibit 1, p. 62, 1, 21-p. 63, 1. 21).

om ee

During the a meeting between Fleming and Cooper on April

8, 1985, a discussion occurred between the two concerning the

filling of a vacancy for a math position at Fairview High. The

two discussed this subject before, and Fleming had already told

Cooper that he had, upon recommendation of the secondary

supervisor, Arthur Vosburgh, rejected Cooper’s recommenda-

tion of one Roosevelt Harvey. When Fleming asked Cooper if

he was going to recommend someone other than Harvey for the

position (which is required of principals when recommendations

are rejected) Cooper_refused to state whether he would recom-

mend someone other than Harvey by the April 23, 1985, deadline

established by Fleming. Who Cooper was to recommend other

than Harvey was up to Cooper. (R. Exhibit 1, p. 69, 11. 11-16).

Cooper did not make his recommendation to Fleming until May

13, 1985. On thatdate he recommended Roosevelt Harvey. (For

entire discussion of this issue, see R. Exhibit 1, p. 66, 1. 12-p. 73,

1. 11; D.C. Tr. p. 672, 1. 15-p. 680, 1. 13; D.C. Tr. Exhibit 11).

Cooper admitted in the second trial that he was not confused

about Fleming’s directives on the Daugherty and Harvey issues.

(12-13-88 Tr. p. 456).

Cooper received a request from Robert Cullen to supply to

Cullen by October 16, 1985, a plan for having all teachers

assigned to their areas of certification by the 1986-87 school

years. (R. Exhibit 1, p. 277, 1.22-p. 278, 1.2). Another reminder

was sent to Cooper on December 11, 1985, Cullen received the

report on December 17, 1985. (R. Exhibit 1, p. 278, 11.2-11).

Fleming could never finish a task or assignment in trying to

work with Cooper without the attempt becoming a major pro-

duction. (R. Exhibit 1, p. 188, 1. 18-p. 189, 1. 1; p. 191, 1. 21-p.

192, 1.7). It was equally difficult to get Cooper to respond in a

straightforward manner. (R. Exhibit 1, p. 413, 1. 25-p. 414, 1.

24). Fleming did not experierice similar difficulty with other

principals in obtaining satisfactory responses to his requests. (R.

Exhibit 1, p. 167, 11. 3-10).

— 10 —

ARGUMENT

I

THE DECISION OF THE SUPREME COURT OF

TENNESSEE IS NOT IN CONFLICT WITH THE

LOUDERMILL DECISION

Petitioner relies heavily upon Cleveland Board of Education

v. Loudermill, 470 U.S. 532, (1985), as grounds for submitting

that Petitioner’s due process rights have been violated. A

Loudermill argument in this case is misplaced. Factually, the

differences between Loudermill and the instant case are glar-

ingly obvious. Loudermill was dismissed from public employ-

ment because he had lied on his employment application. He

was then given notice of a hearing post-termination. An Ohio

Statute created a property right in public employment for

Loudermill, and this Court found that that property right could

not be taken without an opportunity to respond to charges against

that employee before his dismissal.

In this case, written charges were presented to Mr. Cooper

prior to his dismissal on those charges. A lengthy hearing

occurred wherein proof supporting those charges was first pre-

sented with extensive cross-examination of witnesses testifying

in support of the charges. Mr. Cooper had the opportunity to

present his side of the story. Then the Board voted on the

charges. This notice and hearing was all pre-termination.

Therefore, on its face, there is no factual similarity between the

lack of due process protection in Loudermill, and the due process

provided to Cooper before his dismissal.

The Tennessee Courts are not without sensitivity to due

process claims and fundamental fairness when it comes to

dismissing public school teachers. The case of Turk v. The

Franklin Special School District at 640 S.W. 2d 218 (Tenn.

1982), is illustrative of Tennessee’s concern for these issues. In

=

that case, Ms. Turk was charged with DUI while off duty and the

Superintendent of the School System subsequently read about it

in the newspaper. He then called Ms. Turk to his office and gave

her two choices: (1) relinquish tenure and accept probationary

status and counseling for what the Superintendent had concluded

was an alcohol problem; (2) resign her position as a tenured

teacher. Ms. Turk declined both offers and the Superintendent

then filed charges against her.

When Ms. Turk was brought in for the Board hearing, matters

were brought up which did not appear in the written charges that

had been submitted to her. The same Chancellor that decided

Cooper I and Cooper II ruled that Ms. Turk was not given a fair

hearing because matters were brought up for which she was

given no notice. He then made an independent finding that if the

extraneous matters had been in the written charges, they would

not have adversely affected her ability to teach in the public

school system in Franklin, Tennessee. The Tennessee Supreme

Court opined, upon appeal, that --

“We are of the opinion that it was fundamental error for the

Board to consider the June, 1979, accident, or her absentee

record, or the Superintendent’s charge that she had an

alcohol problem that required her acknowledgmentof same

and treatment therefor, because those charges were not

specified in writing prior to the hearing.” At p. 220.

Under any definition, the aforementioned proceedings did in-

deed fail to provide the adequate due process to Ms. Turk.

It is significant to note that the statutory scheme in Tennessee

under the Tenure Act further states that after a school board has

made a decision and the teacher appeals the case to Chancery

Court,

“the filing of such Petition shall suspend the Order of the

Board pending a decision by the Chancellor, but the teacher

shall not be permitted to return to teaching pending final

disposition of the appeal.” T.C.A. 49-5-513(e) (Emphasis

supplied).

Thus, it can be argued that the hearing before the Chancellor is

pre-termination. The due process afforded to Freeman Cooper,

and any other teacher in Tennessee under its Teacher Tenure Act,

is more than adequate to meet the guarantees of the United States

Constitution, Loudermill, and its progeny.

Petitioner further contends that under the tenure scheme stated

in T.C.A. 49-5-513, and the de novo judicial review provisions

contained therein the slate is not wiped clean when the matter is

heard by the Chancellor. His “cold tater” argument ignores the

plain language of the statute, strips the Chancellor of any vestige

of a presumption of honesty and good faith, and attempts to

stretch the requirements of due process beyond constitutional

mandates. Whereas Ohio statutes did not clearly outline in

Loudermill the process that is due once a property right is

established, Tennessee’s Teacher Tenure Act establishes due

process in terms and amounts that far exceed the minimum

requirements.

I

THE PETITIONER HAS NOT ESTBLISHED THAT

THE BOARD ACTED IN A MANNER SO AS TO REN-

DER IT BIASED OR PREJUDICED IN CARRYING

OUT ITS STATUTORY DUTIES IN RELATION TO

THE DISCHARGE OF COOPER

The Petitioner refers this Court to the cases of Staton v. Mayes,

552 F.2d 908 (10th Cir. 1977), cert. denied, 434 U.S. 907 (1977),

and Miller v. City of Mission, Kansas, 705 F.2d 368 (10th Cir.

1983), in an effort to demonstrate that the Board in this case was

biased and prejudiced and therefore did not provide Cooper with

a fair hearing. These cases are heipful in defining what consti-

tutes bias or prejudice in connection with termination hearings,

os

for in each case, the Court rendered its decision based upon

specific facts which gave rise to an unfair hearing.

In Staton, supra, the Tenth Circuit held that a Buard decision

to terminate a school superintendent was unfair where Board

members expressed their desire to fire the superintendent prior

to the dismissal hearing. The Petitioner summarizes the crucial

facts stating that “prior to the Board hearing, several of the Board

members had voiced their views that a new superintendent was

needed.” (Petition atp. 19) Inreality, the facts demonstrated that

before the decision to dismiss Staton, two members of the five

member Board had voted not to renew the superintendent’s

contract and one member had made public statements in the

media during his campaign for election to the Board, that it was

his opinion and the opinion of the two other members “that no

progress could be made with school problems until there was a

new superintendent.” At p. 913.

The initial written communication from the Board to Staton

announced, “The Muskogee School Board District I-20 has

voted to dismiss you as Superintendent of Schools for said

District.” At p. 910, Footnote 1. The letter was described as “a

notice of the proposed dismissal” and the charges contained

therein were detailed as “willful neglect of duty and incompe-

tency” without further elaboration. The letter advised Staton of

the date of a hearing on the “proposed dismissal.”

The hearing was conducted as scheduled. Staton appeared

with counsel and witnesses. Only four of the five members of the

Board were present at the concluding session of the hearing. Of

the four, the three who had expressed previous intent to remove

Staton voted for his dismissal. In distinguishing this case from

Withrow v. Larkin, 421 U.S. 35 (1975), the Court concluded that

this was not “simply a case of the instigation of charges and a

statement of them during an investigatory phase by the body that

will later decide the merits of the charges.” At p.914. On the

basis of the facts outlined above, the Court held, “We are

ae

convinced that these established circumstances left no room for

a determination that there was a decision by a fair tribunal, with

the appearance of fairness, in view of the totality of these

circumstances.” At pp. 914-915. _

In Miller v. City of Mission, Kansas, supra, the only hearing

afforded to Miller was a post-termination hearing. Miller was an

assistant police chief. A newly elected mayor called several

closed meetings of the city council which were not announced to

the public and which took place in private homes. At those

meetings, it was decided that Miller would be discharged. Later,

Miller was summoned to meet with the mayor and was informed

that he was being terminated. The city attorney advised him that

he was entitled to a hearing. After the meeting but before the

hearing, the mayor publicly announced Miller’s termination in

press releases. Thereafter, Miller received a letter listing seven

reasons for his termination and again informing him that he was

entitled to a hearing. Miller requested and received a hearing

several months later. At the hearing, Miller received a hst of

additional reasons for termination. The mayor refused to rein-

state Miller after the hearing.

The Tenth Circuit affirmed that part of the District Court’s

decision which held that Miller had been denied procedural due

process. Atp. 372. In its affirmance, the Court specifically noted

that the hearing officer’s own testimony supported the trial

court’s conclusion that “the public hearing was unfair because

the hearing officer ‘had a prejudiced mind when he went into the

case.’” At p. 372.

The Petitioner’s reliance upon Staton and Miller as being di-

rectly applicable to the facts of this case is misleading. Both

decisions support the essential principle that due process in the

instance of deprivation of a property nght requires notice and a

meaningful opportunity to respond. However, the findings of

Staton and Miller are patently different from the findings in this

case because the facts are so drastically different. In Staton and

Miller, the public employee was not given notice of the charges

against him or the opportunity to respond prior to the decision to

terminate him. As such, the hearings in these cases scarcely can

be termed “pre-deprivation hearings.”

The Petitioner argues that two or three members of the Board

had opinions regarding Cooper and his work prior to the hearing

on the charges. The opinions were developed from their

knowledge of Cooper and his work which was obtained in their

capacity as Board members. More importantly, the Petitioner

does not mention the state of mind of the remaining members of

the twelve person Board. He imnutes the possible bias of two or

three members to the entire Board without any factual proof or

basis for supposition. |

In Staton, a significant number of the voting Board members

(three out of four) had expressed through prior votes or public

statements, their intent to remove the school superintendent

before the board hearing. The Petitioner desires to equate this

conduct, to the actions of, at most, two or three persons of a

twelve person Board who indicated before the hearing their

displeasure with the performance of Cooper. The Petitioner

ignores the statutory mandate placed upon the Board to review

proposed charges as to their nature prior to receiving those

charges and notifying the employee. T.C.A. 49-5-511(5). (See

Appendix 48 of Petition.)

The Court in Miller held, based upon the testimony of the

hearing officer, that the sole decisionmaker was prejudiced

before the hearing. Therefore, the “tribunal” was prejudiced and

the due process requirement of a meaningful opportunity to

respond was not met. These findings are not reflected in the

Petitioner’s restatement of the case that “the Tenth Circuit once

again held that where the testimony of members of a

decision-making tribunal shows that those members had preju-

diced minds before the beginning of the hearing, the hearing

must be found to be unfair.” At p. 20 (Emphasis supplied). This

a fe

case shows that Cooper received a full evidentiary hearing

before a twelve person Board.

The decisions in Staton and Miller do not indicate that the

employee in those cases had any opportunity for review following

the decision of termination. The Staton Court states that the

Board’s decision was final while in Miller the Court indicates

that the mayor may have had the final authority to affirm the prior

decision to terminate or to reinstate the employee after the

hearing. The procedures followed in these cases are not at all

similar to the de novo judicial hearing afforded Cooper after the

full evidentiary hearing before the Board. In the absence of such

due process guarantees, the Court in Staton and Miller would

closely scrutinize the demeanor of members of the Board (Staton)

and the mayor (Miller) where those decisionmakers have final

authority. As such, the Courts’ rulings in these cases rested on

two main points: the absence of an impartial tribunal and the lack

of a hearing before termination. Neither of these factors are

present in this case. :

In the case of Horinnville Joint School District No. 1 v.

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

Court set forth the proposition that--

Mere familiarity with the facts of a case gained by an

agency in the performance of its statutory role does not,

however, disqualify a decisionmaker... Nor is a

decisionmaker disqualified simply because he has taken a

position, even in public, on a policy issue related to the

dispute, in the absence of a showing that he is not ‘capable

of judging a particular controversy fairly on the basis of its

own circumstances.’ At p. 493 (Citations omitted)

In that case, the discharged teachers argued that the Board

members “had some personal or official stake in the decision

whether the teachers should be dismissed, ... and that the Board

has manifested some personal bitterness toward the teachers...”

—_ , pam

Atp.491. This Court found that the teachers did not demonstrate

and the Wisconsin Courts did not find that Board members “had

the kind of personal or financial stake in the decision that might

create a conflict of interest.” At p. 492. In the absence of any

findings in this regard and with “nothing in the record to support

charges of personal animosity,” (at p. 492), this Court applied the

above stated proposition to the facts and reversed the holding of

the Wisconsin Supreme Court that the school board “was not

sufficiently impartial” to render a decision to terminate the

teachers. (At pp. 486-487).

Here the Petitioner claims a due process violation because the

Board voted to pay the Superintendent’s legal fees to bring the

charges and because some of its members had opinions about the

Petitioner’s fitness for the job.

The Superintendent in this case was attempting to fulfill his

duties as the Board’s administrative head and “Recommender”

of personnel matters. See T.C.A. 49-2-301(10). In this light, the

Board chose not to make him proceed at personal financial loss.

Moreover, Fleming’s need for legal assistance and his concern

for proceeding without it proved all too real. After presenting the

charges against Cooper, and the Board voting to dismiss him,

Fleming successfully withstood a frontal contempt of court

assault by the Petitioner in the Federal District Court for the

Middle District of Tennessee. More importantly, however, the

Board had dismissed charges against Cooper brought by the

sarne Superintendent less than a year earlier. This record,

therefore, does not contain a “specific demonstration of partial-

ity”, Withrow v. Larkin, supra., or “‘actual risk of bias or pre-

judgment”, /d. The hearing afforded the Petitioner was

“meaningful” by every definition of the word. He lost, but the

hearing procedures and Tennessee’s statutory scheme under

which the Board proceeded were and are constitutional.

The Petitioner raised the elements of financial interest and

personal animosity in his appeal to the Tennessee Supreme

= =

Court. In its holding, the Tennessee Supreme Court referred

directly to Hortonviile, supra., in stating, “It is axiomatic that due

process requires the opportunity of the party charged to be heard

at a meaningful time and in a meaningful manner, before an

impartial tribunal.” Petition at p. A-5. The Court made a specific

finding on the issue of bias or prejudice on the part of the Board

in the pre-termination hearing. In line with Hortonville and

Loudermill, the Court conciuded:

In our opinion, without question, plaintiff had a meaningful

hearing in a meaningful manner before an impartial tribunal

in this case, both before the Board and in the de novo

hearing before the chancellor and there was no violation of

his right to due process. Petition at p. A-6.

The Petitioner cites Moore v. Warrick Public School District

No. 29, 794 F.2d 322 (8th Cir. 1986), for the proposition that he

possessed a substantive due process night. According to Petitioner,

the Court in Moore, relying on Harrah Independent School

District v. Martin, 440 U.S. 194, (1979), concluded that “a

teacher had a substantive due process right to be free from

arbitrary and capricious Board action.”’ (Petition at p. 20)

While the Harrah decision makes reference to the Due Pro-

cess Clause as protecting “substantive aspects of liberty against

impermissible governmental restrictions,” it reversed the Tenth

Circuit Court of Appeals decision that a school board had acted

in a manner “arbitrary” and “capricious” so as to violate “Four-

teenth Amendment notions of fairness embodied in the Due

Process Clause...” At p. 197. In reversing, this Court found that

the actions of the Board in demanding continuing education

units from the teacher and in declining to renew her contract

when she refused to enrol! in the courses, were well within its

responsibility for the public education of students and for em-

ploying teachers and were not arbitrary and capricious. This

Court also found that by being advised of the Board’s decision

not to renew her contract and of her right to a hearing before the

a

board, and by appearing with her attorney at the hearing to

contest the charge of wilful neglect of duty, the teacher “was

accorded the usual elements of procedural due process.” id.

Hl

THE PETITIONER WAS AFFORDED NOTICE AND A

MEANINGFUL OPPORTUNITY TO RESPOND TO

THE CHARGES DURING A FULL BOARD HEARING

AND A DE NOVO CHANCERY COURT PROCEEDING

PRIOR TO TERMINATION

The Petitioner acknowledges that under the Tennessee Teacher

Tenure Act, he is entitled to a de novo hearing. In fact, he

received two de novo hearings in this case. Since the Tennessee -

Teacher Tenure Act provides that the order of the Board is

suspended pending determination by the de novo hearing,

Cooper was not terminated at the conclusion of the Board’s

hearing. As such, Cooper was entitled to and did receive a

pre-termination hearing before an impartial Chancery Court

judge prior to his actual discharge. In fact, the Tennessee

Supreme Court permitted Cooper an additional de novo hearing

when it remanded the case in part to the Chancellor for another

hearing. Cooper remained under suspension pending the out-

come of this second de novo hearing.

Petitioner refers to the case of Matthews v. Harney County,

Oregon School District No. 4, 819 F.2d 889 (9th Cir. 1987), as

holding that due process required that the discharged teacher be

provided with “a meaningful pre-termination hearing, regard-

less of the adequacy of the post-termination procedure she

received after her dismissal.” Petition at p. 20.

Matthews, a public school teacher, was dismissed after she

allegedly interfered with a drug investigation by the School

Superintendent. She was brought before two Boards on charges

stemming from the incident. The High School Board, which first

considered the charges, held its meeting in executive session and

— a

while in executive session, received evidence by way of inter-

views from students and parents. The Board then met with

Matthews and gave her the option of either resigning or being

fired. Matthews agreed to resign but then withdrew her resigna-

tion. She was directed to attend a special meeting of the Board.

Atthat meeting, the Board again went into executive session and,

after returning to open session, voted to dismiss Matthews. At

p. 892. Matthews was given a written statement of reasons for

the dismissal and advised that she could request a hearing.

Matthews requested and received a hearing. At the end of the

evidentiary hearing, the Board voted unanimously to affirm its

earlier decision to dismiss. Later the Elementary School Board

met and ratified the High School’s termination of Matthews.

Matthews requested a hearing from that Board. The Elementary

Board held an evidentiary hearing and reaffirmed the action of

dismissing Ms. Matthews.

Matthews did not contest the evidentiary hearings nor the

adequacy of the post-termination procedures she received after

her dismissal. She did contest the “pre-termination” hearing as

constitutionally inadequate.

The Court held, in light of the facts, that a jury could find that -

the initial meeting with Matthews was “meaningless as a

pre-termination opportunity to respond” because the Board had

already voted to dismiss Matthews. At p. 893. In reversing the

District Court’s summary judgment in favor of the School

Board, the Court stated that “[u]nder Loudermill, with respect to

her property interest claim, Matthews should have received

formal notice of the charges against her, an explanation of the

evidence against her, and an opportunity to respond prior to the

board’s decision to terminate her employment.” At p. 894.

The Petitioner’s description of the facts to the effect that

Matthews’ “discharge was subsequently upheld afterevidentiary

hearings before both boards,” (Petition at p. 20) does not take

into consideration that those evidentiary hearings were not

a en

attacked by Matthews in the Court case. Instead, it was the

closed hearing wherein the decision was reached to terminate

Matthews without first giving her notice of the charges or an

opportunity to respond during the hearing, that came under

attack and failed to meet due process requirements. Again, the

court closely reviewed the facts surrounding the procedure

provided and concluded from those facts that procedural due

process had been denied. The issue was not whether Matthews

received a “meaningful” pre-termination hearing as indicated by

the Petitioner. Rather, the denial of due process was the result of

the denial of the two essential elements: (1) Matthews received

no notice prior to hearing; and, (2) since the meetings were held

in executive session and she was not permitted to attend, Matthews

received no hearing whatsoever prior to termination.

The cases referred to above have been explained in great detail

to demonstrate that the decision of the Tennessee Supreme Court

in this case is not inconsistent with the holdings of those cases

from Circuits other than the Sixth Circuit which have addressed

the issues of bias or prejudice in the decision-making body, or the

elements of arbitrary and capricious behavior on the part of a

decision-making body in termination ofemployment cases. The

decision of the Tennessee Supreme Court in this case protects the

constitutional due process rights of public employees to be

provided with iotice and a meaningful opportunity to respond

prior to termination.

oo

IV

THE PETITIONER HAS FAILED TO DEMONSTRATE

THAT THERE IS A CONFLICT AMONG FEDERAL

COURTS OF APPEAL IN THE APPLICATION OF

THE CONSTITUTIONAL DUE PROCESS PREREQUI-

SITES OF LOUDERMILL IN CASES WHERE

POST-DEPRIVATION REVIEW IS SUBSTITUTED

FOR PRE-DEPRIVATION NOTICE AND OPPORTU-

NITY TO RESPOND

The Petitioner states that “[n]umerous Federal Courts of

Appeal have recognized that post-deprivation remedies are not

an adequate substitute for the meaningful pre-deprivation hear-

ing required as a matter of due process.” Petition p. 19. The

Circuits are in agreement that notice and the opportunity to

respond are essential requirements of constitutional due process.

The Circuits also are in agreement that in the absence of ex-

ceptional circumstances as outlined in decisions of this Court,

where there has been no notice of charges or opportunity to

respond provided prior to termination, post-termination hearings

are inherently unfair and are violative of constitutional due

process guarantees. There is nothing in the decision of the

Tennessee Supreme Court that is inconsistent with either of

these maxims of constitutional due process.

The Petitioner indicates that--

“{a]t least three Courts of Appeal have specifically held,

contrary to the holding of the Supreme Court of Tennessee

in this case, that the availability of post-deprivation rem-

edies does not cure the due process deprivation where an

employee, with a property interest in continuedemployment

is deprived of that interest in the absence of a meaningful

pre-termination hearing.” Petition at p. 20.

In support of this contention, the Petitioner relies upon cases

from the seventh, first, and eleventh circuits, respectively. Though

a, —

not fully explained by the Petitioner, the court in each of these

cases Closely scrutinized the post-deprivation procedure be-

cause there was no pre-termination hearing, and no notice

provided to the employee prior to termination. The Petitioner

argues that the holdings in these cases are in direct conflict with

the holdings of Sixth Circuit and the holding of the Tennessee

Supreme Court in this case.

In Schultz v. Baumgart, 738 F.2d 231 (7th Cir. 1984), Schultz,

a firefighter, received only a letter which informed him that if he

did not return to work by a certain date, his employment would

be terminated. The Court found that the post-deprivation griev-

ance procedures or board hearing did not cure a_ violation of

Schultz’s due process rights. In so ruling, the Court held that

“Schultz was entitled to notice and a meaningful opportunity to

respond before he was terminated. If he was terminated without

those protections, the constitutional deprivation was complete.”

At p. 237. The Court concluded that the deprivation was “a

garden-variety summary dismissal, and the city could have

easily complied with requirements for pre-deprivation proce-

dures.” At p. 238. Thus, Schultz is a case where the city denied

the employee notice and a hearing before he was discharged.

In Kercado-Melendez v. Aponte-Rogue, 829 F.2d 255 (1st Cir.

1987), Kercado-Melendez, a schooi superintendent, without

’ prior notice, received a complaint cancelling her teaching certifi-

cate and dismissing her as a superintendent. This “cancellation

order” was deemed effective upon receipt, however, an appeal if

filed within ten days would stay the effect of the order, substitut-

ing dismissal with a suspension pending the outcome of the

appeal. Relying on Loudermill, the Court held:

Kercado’s opportunity to appeal the Secretary’s order after

being informed of the action is constitutionally inadequate;

due process requires that she be given notice of the charges

and an opportunity to respond before the action is taken. At

p. 263.

—_

In utilizing Loudermill as a guide, the Court noted further that

“the Secretary was not obliged to conduct a full evidentiary

hearing prior to dismissing Kercado.” id.

In Fetner v. City of Roanoke, 813 F.2d 1183 (11th Cir. 1987),

a police chief, without prior notice was informed by the mayor

that the city council had unanimously voted to fire him. The

District Court held that Fetner had suffered no constitutional

deprivation because state personnel proceedings and a personal

lawsuit, as post-deprivation remedies, provided adequate due

process. In reversing, the Circuit Court held that “The Roanoke

City Council had ample time to give Fetner notice and offer him

an opportunity to be heard before they fired him.” At p. 1185.

The Court went on to remark, “Post-deprivation remedies do not

provide due process if pre-deprivation remedies are practi-

cable.” At p. 1186.

Petitioner’s remarks that the holding of the Tennessee Su-

preme Court in this case is in conflict with the three cases cited

above is a gross misstatement of the holding in this case and of

the holdings in those cases. The essential due process require-

ment of an opportunity to be heard at a meaningful time and in

a meaningful manner was recognized in each of the three cases

and was directly relied upon by the Tennessee Supreme Court in

this case. The reason for contrasting results exists in the obvious

fact that in this case Cooper was provided notice of charges and

an opportunity to respond before the action was taken as required

by Loudermill and as found lacking by the Courts in Schultz,

Kercado-Melendez, and Fetner.

Notwithstanding, the fact that the above cited cases involve

factual situations where employees were afforded no

pre-termination hearings, the Petitioner has selected these cases

to convey the appearance of a conflict among Circuits on the

issue of bias at the pre-termination level and whether such bias

may be cured through a post-deprivation hearing. The Petitioner

draws the distinction in the following manner:

—_

However, at least three Circuits, including the Sixth Circuit

which includes the State of Tennessee, have heldthat bias of

a decisionmaker at the pre-termination levei is irrelevant

where post-deprivation remedies are available.” Petition at

p. 21.

In Schaper v. City of Huntsville, 813 F.2d 709 (Sth Cir. 1987),

cited by the Petitioner as in conflict, the Fifth Circuit Court

determined that the police captain discharged in connection with

criminal violations, received, “much more process than simply

notice and an opportunity to respond.” At p. 714. The Court

noted that Schaper was advised of the proposed dismissal, given

a list of reasons for the decision and provided an opportunity to

object to the decision. Perhaps, most significant from the

pre-termination aspect, Schaper received a hearing, with counsel

and witnesses permitted, before he was actually discharged from

the police force. See p. 714. The Court, relying on Loudermill,

determined that at the pre-termination level elaborate proceed-

ings were not mandated. However, “the suostantial property

interest one has in not being deprived of a livelihood requires a

full hearing after termination.” At p. 716.

In Garraghty v. Jordan, 830 F.2d 1295 (4th Cir. 1987), a

prison warden alleged civil nghts and procedural due process

violations after receiving a five day suspension for insubordi-

nation. The Court closely examined the facts leading up to the

decision to suspend Garraghty and concluded that Garraghty had

received sufficient due process protections. The Court utilized

the balancing test in Loudermill, and found that Garraghty re-

ceived sufficient notice and was afforded an opportunity to

respond to the charges. The Court held, “Due process principles

did not require that a neutral decisionmaker, rather than Jordan

[the superintendent], make the decision to suspend Garraghty. A

pre-deprivation proceeding need not be a full evidentiary hear-

ing with witnesses and a neutral decisionmaker so long as the

employee is given an opportunity to answer the charges.” At p.

=

1302. The Court explained this holding in light of the facts of the

case presented to it.

“The deprivation caused by a short-term suspension when

balanced with the government’s interest in expeditious and

effective discipline and the administrative burden of pro-

viding a neutral decisionmaker forevery routine suspension,

does not warrant pre-deprivation proceedings before a

neutral party.” id.

While its principles are sound, the facts in Garraghty are not

comparable to this case where Cooper received full and timely

notice of charges, a full evidentiary hearing, a complete de novo

review of the decision and a review by the Tennessee Supreme

Court of all facts and procedures utilized in the findings.

The Petitioner relies heavily upon the case of Duchesne v.

Williams, 849 F.2d 1004 (6th Cir. 1988), cert. denied, 109 S.Ct.

1535 (1989), in attempting to demonstrate a conflict among

circuits. In Duchesne, a Chief Building Inspector was advised

that he was being terminated for several reasons, including

“improper conduct.” Duchesne’s attorney requested a

pre-termination due process hearing upon receiving notice of

termination. When the City Manager refused to reinstate

Duchesne pending the hearing, Duchesne filed suit in federal

district court. Thereafter, Duchesne received a written descrip-

tion of the reasons for discharge and a pre-termination hearing

took place over several days. Duchesne was represented by legal

counsel and given an opportunity to present witnesses and to

cross-examine adverse witnesses. The City Manager who ter-

minated Duchesne presided over the hearing, testified against

Duchesne and after the hearing reaffirmed the discharge.

In reversing the district court decision calling for a “neutral

decisionmaker”, the Sixth Circuit Court relied heavily upon

Loudermill, The Court took particular note of the fact that this

Court, in Loudermill, had accepted its (the Sixth Circuit’s) rea-

soning regarding the distinctly different purposes of a

—.

pre-termination presentation and a later formal hearing to adju-

dicate facts. See discussion at p. 1006-1007. “The Loudermill

majority deliberately chose not to include within its definition of

pre-termination hearing rights the panoply of trial-type hearing

rights advocated by Justice Marshall, which included a full

evidentiary, adversary, adjudicatory hearing with an impartial

judge.” At p. 1007. The Court later noted, “We acknowledge

that there may be cases--perhaps this is one of them--in which the

supervisory official is so biased that the Loudermill

“right-of-reply” process is meaningless. The full

post-termination, adversary, trial-type hearing will serve to

ferret out bias, pretext, deception and corruption by the employer

in discharging the employee”. At p. 1008.

The Petitioner’s reliance upon Schaper, Garraghty, and

Duchesne does not demonstrate a conflict among federal courts

of appeal on the issue of meaningful pre-deprivation notice and

opportunity torespond versus full trial-type hearings provided as

post-deprivation relief. In the cases cited by the Petitioner where

post-deprivation hearings were deemed constitutionally inad-

equate, the employees were not afforded notice or ar opportunity

to respond prior to termination. In the cases relied upon by the

Petitioner to indicate that post-deprivation hearings may be

constitutionally proper, the appellate court found in each case,

from the facts in the record, that the employee was afforded due

process protection in the form of notice and an opportunity to

respond prior to termination.

Even if the Petitioner were able to demonstrate some inconsis-

tency in the applications of Loudermill in Schaper, Garraghty

and Duchesne in comparison to other Circuits, the instant case is

not the case in which those inconsistencies should be more

closely examined. This case provided a full range of due process

protections to the Petitioner at a meaningful time and in a

meaningful manner. The Tennessee Supreme Court has applied

properly the dictates and guidelines set forth by this Court in

Loudermill and it has closely examined the facts in the record to

—, ian

conclude that, not only were due process protections afforded to

the Petitioner but also, the findings of both the Board and the

chancery court giving rise to the dismissal of the Petitioner were

“in full accord with the preponderance of the evidence.” (At

A-4).

Petitioner has not demonstrated a connection between the

holding in the Duchesne case and the facts of this case. While the

holding of Duchesne sets forth that a neutral decisionmaker is

not required and that post-termination review is sufficient to

rectify any faults in the pre-termination process, Duchesne is sull

not on point with the facts in Cooper. In this case, Cooper

received a full evidentiary hearing before a decision by the board.

Cooper was not terminated, but suspended pending review by

the chancery court. The chancery court conducted a de novo

review of the decision and based upon the facts found that

Cooper was subject to dismissal. Cooper has not demonstrated

that the board was biased, only that it had a combined responsi-

bility, under statute, to initiate, investigate and adjudicate charges

against teachers within its school system.

The Petitioner’s remark that the outcome of the hearing was

“pre-determined” (Petition at p. 24) ignores the facts in the

record to the effect that Cooper had a hearing on previous

charges which resulted in those charges being dismissed and

Cooper being returned to his post as principal. It also ignores the

extensive deliberations by the twelve member Board wherein

there were a number of individual findings upon the charges

presented to the Board. Further the remark “that Cooper’s

opportunity to respond ‘was nothing more than a sham’” (Peti-

tion at p. 23) reveals Cooper’s shallow treatment of the facts. For

Cooper to consider as “a sham” a process wherein he received a

fuli evidentiary hearing before the board, a de novo review by a

state chancery court, a review of procedures and facts by the

Tennessee Supreme Court and a second de novo hearing with an

additional opportunity to present evidence to the chancellor, is to

ignore the tenet that due process is not geared toward a specific

_

outcome, and in turn, to assert to the contrary that where a certain

result has not been achieved, due process has not been afforded.

“Due process, as this Court has repeatedly held, is a term that

‘negates any concept of inflexible procedures universally appli-

cable to every imaginable situation.’ Cafeteria Workers v.

McElroy. 367 U.S. 866, 895, (1961) 81 S. Ct. 1743, 1748, 6

L.Ed. 2d 1230 (1961)”. Hortonville, supra., at p. 494. The

Petitioner appears to advocate an inflexible application of due

process such that anytime any individual member of an admin-

istrative agency may develop a preconceived notion of the facts

in adischarge matter, notwithstanding the fact that the individual

is only one of many on a board which will make a collective

decision, and notwithstanding the fact that the decision of the

Board is subject to de novo review by an impartial judicial tri-

bunal, the process becomes so constitutionally tainted as to void

the entire process. Certainly this is not the intention of this Court

in requiring notice and an opportunity to respond at a meaningful

time and in a meaningful manner. Nor dogs it appear to be the

intent of the decisions of federal courts of appeal when they

apply the Loudermill standard to the individual facts and cir-

cumstances which confront them in the individual cases before

them. (See also Brasslett v. Cota, 761 F.2d 827 (1st Cir., 1985;

O’ Brienv. DiGrazia, 544 F.2d 543, 546-547 (1st Cir., 1976) cert.

den. sub nom O’ Brien v. Jordan, 431 U.S. 914 (1977); Perkins

v. Board of Directors, 528 F. Supp. 1313 (1981), AFF’d, 686

F.2d 49 (1st Cir. 1982).

CONCLUSION

The Petitioner submits that the Tennessee Supreme Court 1s

oblivious to his due process rights and declares the same to be “of

no consequence”. At p. 24. Then, to support his argument that

Cooper I and Cooper II have far reaching effects, he states that

those decisions are --

Ge

a license to school boards to run roughshod over the

constitutional rights of tenvred teachers without fear of

consequence. School boards, as well as other administra-

tive bodies that adjudicate, need not provide any semblance

of a meaningful hearing to those who appear before them,

even where property rights protected by the Fourteenth

Amendment are at stake. (Page 25, Petitioner’s Writ).

Petitioner needs to ask Ms. Turk how roughshod school

boards are allowed torun over tenured teachers’ rights. Petitioner

needs to inquire of Frances Marie Williams how lax and indiffer-

ent the Tennessee Supreme Court is toward the teachers’ rights

underthe Tennessee Teacher Tenure Act. See Williams v. Pittard,

604 S.W.2d 845 (Tenn. 1980). Petitioner should ask Elayne

Sanders if the Tennessee Supreme court recognizes the property

rights of tenured teachers. Sanders v. Vinson, 558 S.W.2d 838

(Tenn. 1977). Petitioner would do well to call Hildred Wagner

and ask her if the Supreme Court of Tennessee recognizes such

legal doctrines as due process, notice, and the right to be heard.

Wagner v. Elizabethton City Board of Education, 496 S.W.2d

468 (Tenn. 1973). Stated simply, the far reaching effect of

Cooper I and Cooper II extends no further than Mr. Cooper’s

insubordination, inefficiency, neglect of duty and incompe-

tency.

The Writ should be denied.

Respectfully submitted,

ROBERT G. WHEELER, JR..,

NO. 5807

Bank of Goodlettsville, Suite 201

112 Long Hollow Pike

P. O. Box 904

Goodlettsville, TN 37072

(615) 859-2500

CERTIFICATE OF SERVICE

I hereby certifv that three (3) copies of the foregoing Petition

for Writ of Certiorari have been placed in the United States Mail,

first-class postage prepaid, addressed to W. Ovid Collins, Jr.,

Richard L. Colbert, and Charles Hampton White, Attorneys for

the Petitioner, at their offices at Cornelius & Collins, Suite 2900,

Third National Financial Center, P. O. Box 2808, Nashville,

Tennessee 37219, phone number (615) 244-1440, the last ad-

dress or Cornelius & Collins known to me, on this the 15th day

of April, 1991.