Appendix — Stewart v. Fort Wayne Community Schools

91°16 | | wy 19 wor

orice OF THE CLERC |

NO.

IN THE SUPREME COURT OF THE UNITED STATES

JUNE TERM, 1991

KATHLEEN ANN STEWART,

Petitioner,

Vv.

FORT WAYNE COMMUNITY SCHOOLS,

Respondent

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

John S. Bloom

Bloom & Bloom

Professional Corporation

111 West Market Street

P. O. Box 405

Columbia City, IN 46725

(219) 244-5129

Attorney for Petitioner

NO. ’

IN THE SUPREME COURT OF THE UNITED STATES

JUNE TERM, 1991

KATHLEEN ANN STEWART,

Petitioner,

Vv.

FORT WAYNE COMMUNITY SCHOOLS,

Respondent

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

John S. Bloom

Bloom & Bloom

Professional Corporation

111 West Market Street

P. O. Box 405

Columbia City, IN 46725

(219) 244-5129 .

Attorney for Petitioner

TABLE OF CONTENTS FOR APPENDIX

Findings and Conclusions of

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Findings and Conclusion of Trial

Court ° . . a . . 7 . . 7 o o ° a

Opinion of Indiana Court of

Da ss s «¢ © © © «© © «© ce © @

Opinion of Supreme Court of

Dif. Geb eS « « 6¢ © ew « ee «

Denial of Rehearing, Supreme

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eS ers

FINDINGS AND CONCLUSIONS OF SCHOOL BOARD

Le Kathy Stewart is employed by the

Fort Wayne Community Schools as a

Psychometrist under written contract

(Board Exhibit 1). She was first employed

under regular contact by the Fort Wayne

Community Schools on January 30, 1978, and

has been employed on annual contracts

since August of 1978.

2. By letter dated February 18,

1983, (Board Exhibit 2), she was notified

that on March 28, 1983, the Board of

School Trustees would consider the

Superintendent’s recommendation that her

contract be cancelled, an action "taken to

decrease the number of administrative

positions (Board Exhibit 2)." The letter

informed her of the time and place of the

consideration of the recommendation, and

her right to hearing if requested in

writing. The letter further stated:

"Due to various existing conditions which

include the uncertainty of both federal

and state funding as well as the continued

decline in student enrollment, it is

necessary to reduce the nurber of

administrators employed by the Fort Wayne

Community Schools for the 1983-84 year.

Since the district is moving toward dual

certification, (i.e.,

Psychometrist/Counselor) and the

counseling certificate requires a teaching

license, it follows logically that any

reduction in numbers would first include

those not licensed as teachers. You have

least seniority among those persons

licensed as Psychometrists who are not

licensed as teachers and therefore, you

will not be employed as a Psychometrist

for the 1983-84 school year. Since there

is no other available position for which

you are certified, it is necessary to

cancel your contract with the school

corporation."

36 On March 4, 1983, Mrs. Stewart’s

attorney wrote to the Fort Wayne Community

Schools and requested a hearing (Board

Exhibit 3), which was set for March 14,

1983 (Board Exhibit 4). Mrs. Stewart’s

attorney’s March 4 letter requested a

statement of reasons for the consideration

of cancellation, and the response sent

three days later (Board Exhibit 4)

identified the reasons as described in

Board Exhibit 2, copy of which was

enclosed with Board Exhibit 4.

4. On March 8, 1983, Mrs. Stewart’s

attorney again wrote to the Fort Wayne

Community Schools requesting a _ public

hearing (Board Exhibit 5), a statement of

reasons for the proposed cancelation in

the language of the statute, a copy of the

rules of procedure governing the hearing,

inquiring as to provisions for subpoenaing

witnesses and documents, and requesting

review of the personnel records of all

Psychometrists together with other

documents.

$. By letter dated March 10, 1983,

(Board Exhibit 6), the Fort Wayne

Community Schools responded through its

attorney that the hearing would be public,

that the reasons for the cancellation

stated in the letter of February 18, 1983,

(Board Exhibit 2) were more specific than

the statutory phrase of decrease in the

number of teaching positions, that there

were no written rules of procedure

governing conduct at the hearing but that

it would be run similar to a trial with an

independent attorney employed by the Board

to preside and rule on evidentiary

matters, that there was no provision for

the subpoenaing of witnesses but that the

school system would do what it could to

have those over whom it had control in

attendance if a list was provided by Mrs.

Stewart, and verifying that a number of

documents had been provided to Mrs.

Stewart’s attorney, but that the personnel

files of other Psychometrists were

confidential to them and a waiver from

them or a valid court order would be

needed prior to their release. The letter

also requested copies of all documents

which Mrs. Stewart intended to produce as

evidence.

6. By letter dated March 14 and

received by the Fort Wayne Community

Schools’ attorney at approximately 2:00

o’clock p.m. on the same day of the

hearing, Kathy Stewart’s attorney

contended that the collective bargaining

agreement entered into, with classroom

teachers applied to Mrs. Stewart, and

requested the Superintendent’s conference

described in that collective bargaining

agreement. In addition, Mrs. Stewart’s

attorney requested the review of certain

materials on other school Psychometrists.

By telephone, the school attorney

responded that Kathy Stewart was not a

member of the bargaining unit and that

therefore the contract didn’t apply, but

that the requested documents would be made

Se te

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available at approximately 4:30 p.m. the

day of the hearing. They were made

available and reviewed by Mrs. Stewart’s

attorney.

Ve Shortly before 5:30 p.m., a

hearing was commenced in the Board room of

the Fort Wayne Community Schools

administration building, 1230 South

Clinton Street, Fort Wayne, Indiana.

Present and representing the School

administration and presenting evidence on

the contract cancellation were William L.

Sweet, Jr., attorney, Superintendent Bill

Cc. Anthis, and Deputy Superintendent James

K. Robbins. Present and _ representing

Kathy Stewart were Attorney David Keller

and Mrs. Stewart. The hearing was

presided over by Attorney Vern Sheldon who

was independently employed by the Board to

preside and ruie on evidentiary matters.

8. Superintendent Anthis testified

-

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that he became Superintendent of the Forth

Wayne Community schools on July 1, 1980,

but prior to that he had been the

Assistant Superintendent for Instruction

at FWCS for nine years. Student

enrollment in the Fort Wayne Community

Schools began declining from a peak of

approximately 43,000 in the early 1970’s

to approximately 33,000 students now, an

average decline of approximately 1,000 per

year. During the 1982-83 school year, the

decline in student enrollment was just

under 1,000 students, and the school

administration projects a similar decline

for the 1983-84 school year, although it

could be greater given current economic

conditions in the Fort Wayne metropolitan

area which might cause a loss in general

population levels as people move elsewhere

seeking employment.

9. Beginning in the mid-1970’s, due

to the decline in enrollment, FWCS began

cutting back its administrative staff. In

determining which positions to eliminate,

FWCS chose to eliminate specialists with

limited duties in favor of those who could

fulfill multiple functions, and began by

eliminating full-time consultants’ and

full-time supervising teachers. That

process has continued over the years.

10. Decisions to reduce

administrative staff for both the 1982-83

and the 1983-84 school years are based

generally on the following three factors:

a. The continuing decline in

student enrollment results in declining

state financial aid. The majority of

state funding for FWCS is determined by a

per capita formula based on student

enrollment, so that fewer students result

in less state funding. The reduction in

enrollment of just under 1,000 students

from the 1981-82 school year to the

1982-83 school year reduced that funding,

as will the similar enrollment decline

projected for 1983-84.

b. Since local property tax

revenues were frozen by the state

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legislature in 1973, increases in state

funding have not kept pace with rising

expenses. Local school districts cannot

increase local revenues and are dependent

on the state for increase funds. The

rising costs associated with operating a

school system have increased at a faster

rate than the increase in state funds.

c. In the past three to four years,

federal funding has been significantly

reduced. For example, FWCS received an

ESAS grant from the federal government at

a level of approximately $460,000 four

years ago. Today, FWCS receives nothing

for those same programs, yet some of the

programs continue and are paid for by the

general fund. There have been similar

reductions in other federal grants.

11. As a result of these revenue

related factors, the FWCS administrative

staff was reduced by 16 positions in

school year 1981-82, 12 positions in

school year 1982-83, and a reduction of 10

positions is anticipated in school year

1983-84.

12. With the knowledge that

administrative staff needed to be reduced,

Superintendent Anthis met, in the Spring

of 1981, with all FWCS administrative

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employees who had less than five years

service with FWCS under aé- regular

contract. The need for administrative

reductions was discussed and the

administrators present were told that it

was important for them to obtain licensing

and certification in multiple areas so

that they could be used in various

combined positions in the future. Those

with single certifications who could only

occupy one position were told that they

would be the most likely to have their

jobs eliminated as staff reductions

occurred. Kathy Stewart was present at

the meeting and had only ae single

certification, that of school

Psychometrist.

13. On November 23, 1981, the FWCS

Board of School Trustees approved an

administration recommendation regarding

the reduction of administrative staff

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involving the elimination of the Guidance

Counselor and Psychometrist positions

(Board Exhibit 7 and Exhibit F), and the

combining of those positions into

Dean/Counselor and Psychomet™ist/Counselor

positions. Dr. Anthis testified that the

reasons that the administration

recommended elimination of the

Psychometrist position were as follows:

a. Although testing is required by

the Department of Public Instruction and

the North Central Association (a group

involved in accreditation of § school

systems), actual employment of

Psychometrists is not. Licensed

Counselors, on the other hand, are

required at a ratio of one _ licensed

Counselor to 450 students by North

Central, and one licensed Counselor to 400

students by the State of Indiana. Since

particular schools seldom have exactly 400

to 450 £4students, persons fulfilling

multiple rolls could satisfy counseling

requirements by North Central and the

Department of Public Instruction and still

do testing with a psychometric license at

other times or during the summer. The

combination of these responsibilities

allows fewer overall administrative

personnel to perform required functions

while still meeting all requirements of

North Central and the Department of Public

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Instruction. For example, a middle school

of 600 students would require

approximately one and one-half Counselors.

A duly certified Psychometrist/Counselor

could provide the half-time counseling

without over-staffing and still do

psychometric testing. The figure of 600

students is closer to the typical middle

school size than 400 students.

b. The return of administrative

personnel, in this case Psychometrists, to

the school building level is consistent

with the administration and School Board’s

goal to put scarce educational dollars

with the students rather than on a

system-wide administrative position having

no direct impact on or contact with

students. |

14. The procedure approved by the

School Board on November 23, 1981, to

accomplish the elimination of the

Psychometrist position included the

following:

i. The position of guidance

Counselor will be upgraded to

Dean/Counselor and

Psychometrist/Counselor. This is related

to declining pupil enrollments and limited

school finances. It follows the pattern

already established in central office

positions where two or three functions

have been combined under one position with

the title reflecting duties and

responsibilities in a combination of

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areas.

2. Psychometrists and guidance

Counselors will be assigned to the

positions of Psychometrist/Counselor.

aa The Superintendent met on

November 3, 1981, with guidance Counselors

and Psychometrists to inform them of the

circumstances surrounding the changes and

the proposed administrative titles and

duties affecting then.

4. Assignment of guidance

Counselors and Psychometrists to vacancies

in the administrative ranks will be made

on the basis of qualifications to fill tlie

openings which are _ available. Any

factors, including seniority, will be

considered in making these selections.

S. The Psychometrist/Counselor

position will require certification as a

Psychometrist and guidance Counselor.

8. In some situations it may be

necessary to give a guidance Counselor or

Psychometrist a period of time to fully

meet the certification requirements of the

position to which he/she is assigned.

9. Interviews with present guidance

Counselors and Psychometrists requesting

consideration for assignment to the

Psychometrist/Counselor and Dean/Counselor

positions will be completed before January

33, 1982. The Superintendent has

appointed an interview committee for this

purpose.

15. Prior to the Board’s approval of

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the elimination of the Psychometrist

positions, all Psychometrists had been

asked to indicate their assignment

preference if the positions were

eliminated. Kathy Stewart testified that

she received the assignment preference

form in the Spring of 1981 at the meeting

with Superintendent Anthis. When she

returned the form in November of 1981, she

put a question mark in the box indicating

a preference for interviewing for the

Psychometrist/Counselor position (Board

Exhibit 8).

16. Following the procedure approved

by the Board in November of 1981, Kathy

Stewart was interviewed by a committee

chaired by Dr. James Robbins. At the time

of the interview, Dr. Robbins testified

that she indicated a lack of interest in

position at the building level. Kathy

Stewart’s own notes of the interview

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(Exhibit E) and her later letter to Dr.

Anthis (Exhibit B) both verify that at the

time of the interview she refused to make

any commitment that she would work toward

a counseling certification.

17. Following the interview process,

which involved all Psychometrists and all

guidance Counselors, the interview

committee recommended that Kathy Stewart

not be given one of the combined

positions, and that she therefore be laid

off. That recommendation was based on

three factors:

a. Kathy Stewart had only a single

license, in psychometry, and a teacher’s

license at a minimum was a prerequisite to

obtaining counseling license (see Exhibit

A).

b. Kathy Stewart had indicated a

lack of interest in obtaining counseling

certification and in working in school

buildings rather than central

administration.

c. Kathy Stewart and one other

Psychometrist were the least senior in

terms of length of service with the Fort

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ee ey ee

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a Ate

Wayne Community Schools of the singly

licensed Psychometrists, and that both she

and the other ieast senior Psychometrist

should be laid off.

18. On March 22, 1982, the School

Board laid off seven administrative

personnel, five guidance Counselors, and

the two least senior singly certified

Psychometrists (Board Exhibit 9). Kathy

Stewart was one of the two least senior

persons certified only as Psychometrists

who was laid off.

19. Kathy Stewart was reemployed for

the 1982-83 school year upon the

recommendation of the Fort Wayne Community

School’s attorneys that proper contract

cancellation procedures of state law had

not been followed in her layoff. During

the 1982-83 school year, she was the only

singly certified Psychometrist employed by

the Fort Wayne Community Schools under

“regular contract. All other

-18-

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———— - —— :

administrative employees who formerly

worked as Psychometrists are employed at

the present time as

Psychometrist/Counselors if they had a

counseling license, or as acting

Psychometrist/Counselors if they had only

a teacher’s license while they work toward

a counseling certificate in accordance

with the program approved by the School

Board on November 23, 1981 (Board Exhibit

7).

20. Although Kathy Stewart has,

since her layoff in March of 1982, been

working toward a teacher’s license, one of

the prerequisites to a counseling license

(see Exhibit A), she still has over 30

hours of studies to complete to obtain a

teacher’s certificate. She is the least

senior in terms of service with the Fort

Wayne Community Schools under’ regular

contract of all Psychometrists holding

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only a single certification (Board

Exhibits 10 and 11).

21. Under North Central Association

guidelines, licensed teachers are

permitted to do counseling work.

22. There is a justifiable need to

decrease the number of administrative

positions and to eliminate the position of

Psychometrist.

23. Neither North Central nor the

Department of Public Instruction require

any particular staffing levels for

Psychometrists. Although Rule S-1

(Exhibit G) issued by the Commission on

General Education of the Indiana State

Board of Education requires testing of

special education students, no permanent

employment of full-time Psychometrists in

mandated. Therefore, the job of

Psychometrist may be eliminated without

violating any rule or regulation of this

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State or any accreditation requirements of

North Central.

24. Kathy Stewart was not given a

Psychometrist/Counselor position for the

1982-83 school year based upon her lack of

teacher’s or Counselor’s certification,

her position as the least senior in length

of service of those with only a

Psychometrist certificate, and her lack of

interest in and refusal to commit to

obtain counseling certification.

25. There are currently no job

openings for Psychometrist/Counselors.

Kathy Stewart has the least service under

regular contract of all certified

Psychometrists who have no other

certification. There is no other

administrative position which she is

qualified or certified to perforn.

26. Kathy Stewart is not within any

bargaining unit for which a collective

-2 1-

bargaining unit exists under Public Law

217. The only collective bargaining

agreement in effect under Public Law 217

with the Fort Wayne Community Schools is

that with the Fort Wayne Education

Association, which covers only class-room

teachers.

CONCLUSIONS

1. The Superintendent’s

recommendation to cancel the contract of

Kathy Stewart should be accepted for the

following reasons:

a. There is a justifiable need to

reduce the number of administrativ

positions.

b. The administrative posi

Psychometrist should and can be eliminated

and psychometric testing done on a

part-time basis by those so certified who

also perform other duties.

CG. Kathy Stewart is neither

licensed nor certified to perform any

duties other than those of a

Psychometrist, and has less service with

this school corporation than any other

person similarly situated.

-22-

2. The contract of Kathy Stewart is

hereby cancelled, effective after June 17,

1983, the end of the school term following

this cancellation.

THE BOARD OF SCHOOL

TRUSTEES OF THE FORT

WAYNE COMMUNITY SCHOOLS

FINDINGS AND CONCLUSIONS OF TRIAL COURT

The Court having taken under

advisement the evidence presented at trial

on May 24, 1988, and based upon all

pleadings, exhibits and depositions

heretofore filed, now makes findings of

facts and conclusions thereon as follows:

FINDINGS OF FACT

Ae The contract of Plaintiff,

Kathleen Ann Stewart, with Fort Wayne

Community Schoois was cancelled effective

June 17, 1983, by the Board of School

Trustees of the Fort Wayne Community

Schools pursuant to Findings and

Conclusions date March 28, 1983.

2 The School Board’s decision to

cancel the contract of Plaintiff was made

after the Superintendent of Schools so

recommended and a hearing was held in

which evidence was taken concerning the

cancellation. As Plaintiff’s attorney

admitted in oral argument, Plaintiff does

not complain about compliance with

statutory procedures insofar as matters

leading up to the hearing, the hearing

itself or the Board’s decision.

3. The Fort Wayne Community Schools

experienced:

a. significant declines in

student enrollments in the 1970’s_ and

early 1980’s;

b. a State freeze on local

property tax revenues in light of the

rising costs associated with operating the

school system; and

Cc. 3 reduction of federal

funding;

necessitating the decision to eliminate

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12-15 administrators prior

to the opening of the 1982-83 school year.

4. Student enrollments in Fort

Wayne Community Schools declined by

approximately 1000 students per year

between 1972 and 1983 and a decline in

enrollment was projected into the 1983-84

school year when the decision was made to

lay off and consolidate administrative

personnel.

S. The reduction in administrative

personnel resulted in the elimination of

five Counselors and two Psychometrists by

the 1983-84 school year. Additionally,

seven Psychometrists resigned pursuant to

an early retirement incentive offered by

Fort Wayne Community Schools to induce a

further reduction in administrative

personnel.

6. Fort Wayne Community Schools is

accredited by the North Central

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Accrediting association and mvwst meet

accrediting requirements imposed by either

North Central or the State of Indiana.

Pi The position of Psychometrist is

not currently required and was not

required in 1981 by either the North

Central Accrediting Association or the

State of Indiana.

8. In November of 1981, due to

continuing enrollment declines, the Fort

Wayne Community Schools Board of School

Trustees adopted the decision to eliminate

the Psychometrist and Counselor positions

and create the dual position of

Psychometrist/Counselor, which required

certification as both a Psychometrist and

a Counselor.

9. In the spring of 1981, the

Superintendent of Schools met with those

Psychometrists and Counselors with less

than five (5) years under contract with

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the Fort Wayne Community Schools’ to

discuss administrative reductions.

Plaintiff was present at that meeting, and

was told that it would be important to

obtain multiple licenses because of the

need to reduce personnel and the fact that

positions were going to be combined. She

was aware of the administrative

reductions, the fact that Psychometrists

would be among those affected, and that

she would be more likely to be able to

retain her position by obtaining

additional licensing.

10. A classroom teacher’s' license

and teaching experience are prerequisites

to certification as a Counselor.

11. Plaintiff did not have a general

teacher’s license (which is a prerequisite

for certification as a Counselor) when her

contract was cancelled in 1983 nor was she

working toward obtaining such a license.

@-27@

12. Plaintiff was the only

Psychometrist employed in the 1982-83

school year and nobody else has been hired

(after Stewart’s contract was cancelled at

the end of the 1983 school year) for the

position of Psychometrist.

13. All others retained over Stewart

were more qualified for the

Psychometrist/Counselor position than

Stewart because all had Psychometrist

certification, as did Stewart, but all

also had classroom teaching licenses,

which is a prerequisite to Counselor

certification. Additionally she was the

least senior.

14. Plaintiff has stipulated that

she was terminated pursuant to the

provisions set forth in IND. CODE

§20-6.1-4-10 and that all of her

procedural due process rights as required

by statute and by law were honored.

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15. Plaintiff’s complaint against

Defendant (as alleged in her complaint) is

that her constitutional rights were

violated pursuant to 42 U.S.C. §1983 and

that the actions of the School Board were

arbitrary and capricious.

16. Plaintiff has presented no

evidence that the actions taken by

Defendant were the product of a bad motive

on the part of said Defendant.

CONCLUSIONS OF LAW

1) A School Board has authority to

define, redefine and reclassify job

Classifications affecting both tenured and

nontenured personnel.

2) All statutory procedures

regarding the cancellation of an

indefinite teacher’s contract, as_ set

forth in IND. CODE $§20-6.1-4-10, were

followed by the Fort Wayne Community

Schools regarding the contract of the

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Plaintiff.

3) The cases of Watson v. Burnell,

23 N.E.2d 420 (Ind. 1939) and Barnes vy.

Mendenhall, 1983 N.E.2d 556 (Ind. App.

1932) are inapplicable to the _ facts

presented as the Plaintiff was less

qualified for the Psychometrist/Counsel

position than anyone else retained in the

position.

4) The Plaintiff has stipulated and

this Court finds that Defendant has not

violated any procedural due process

rights.

5) That the only substantive due

process claims which are recognized by the

courts are:

a) the substantive due process

right of a woman to decide whether to have

an abortion Roe v. Wade, 410 U.S. 113

(1973)

b) governmental conduct that

is arbitrary or capricious

Cc) government use of excessive

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force. Rochin v. California, 342 U.S. 165

(1952). Johnson v. Glick, 481 F.2d 102

(2nd Cir. 1973).

6) That the appropriate time to be

reviewed by this Court in making

determination as to the appropriateness of

the Board’s action is the circumstances at

the time of the Board’s hearing.

7) That no claim has been submitted

or advanced in this lawsuit which would

support a claim based on a violation of

substantive due process.

8) That 511 IAC 6-2-1 et seg.

imposes no specific duty on the School

Board to Plaintiff.

IT IS THEREFORE ORDERED, ADJUDGED,

AND DECREED that Judgment be entered in

favor of Defendant and against Plaintiff,

costs to Plaintiff.

Dated this 4th day of November, 1988.

EDWARD J. MYERS

JUDGE, WHITLEY CIRCUIT COURT

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COURT OF APPEALS OF INDIANA THIRD DISTRICT

APPEAL FROM THE WHITLEY CIRCUIT COURT

STATON, J.

Kathleen Ann Stewart appeals’ the

cancellation of her contract with Fort

Wayne Community Schools’ (FWCS). The

decision of the FWCS Board to cancel her

contract was reviewed and upheld by the

Whitley Circuit Court. Stewart also

appeals denial by the trail court of her

Claim for reinstatement, damages, and

attorney fees under 42 U.S.C. Sections

1983 and 1988.

Stewart presents us with several

issues on appeal, consolidated and

restated these are:

1. Whether the board was required

to retain Stewart over other non-tenured

employees?

2. Whether the board action was

arbitrary, capricious, and contrary to

law?

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3. Whether Stewart was denied

substantive due process?

4. Whether Stewart has a claim

under 42. U.S.C. section 1983 and 1988?

Reversed.

Stewart was first employed by FWCS as

a psychometrist in January, 1978.

Thereafter, she was employed on annual

contracts for six consecutive years.

Pursuant to ae pretrial order of the

Whitley Circuit Court, the parties

stipulated that Stewart was a "tenured"

teacher,+ that she was terminated pursuant

to the provisions of IC 20-6.1-4-10,2 and

that two non-tenured employees were

retained at the time of the cancellation

of Stewart’s contract.

On appeal we will review the

administrative proceedings to determine

whether the board decision was supported

by substantial evidence, was not arbitrary

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{

:

and capricious, and whether the board

followed all relevant rules of law and

procedure, including its own rules.

Lit Schoo] District .

Martinsville v. Mason (1983), Ind. App.,

451 N.E.2d 349, 353, trans. denied.

I.

Cancellation

On February 18, 1983, Stewart was

notified that cancellation of her contract

would be considered at a school board

meeting on March 28, 1983. The reasons

given for cancellation of her contract

were: declining student enrollment;

uncertainty of funding; her lack of dual

certification; and seniority. Stewart

requested a hearing before the board which

was held on March 14, 1983. On Merch 28,

1983, the board cancelled her contract

effective after June 17, 1983.

It is apparent from the findings of

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3

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y,

(

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the board that Stewart’s

contract was

cancelled pursuant to an administrative

reduction policy adopted by the board on

November 23, 1981. The policy provided

for the elimination of the guidance

counselor and psychometrist positions and

the creation of new, combined, positions

for "dean/counselor" and

"“psychometrist/counselor". The procedural

guidelines for implementation of this dual

certification policy included the

allowance of time for guidance counselors

and psychometrists to meet the

certification requirements of the new dual

position. 3

Stewart contends that in January of

1983 a new policy for administrative

reduction was adopted replacing the dual

certification policy. The record supports

this claim. According to the minutes of a

board meeting held on January 24, 1983,

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the new administrative reduction

guidelines were "to replace those adopted

by the Board on November 23, 1981." R.

270 (emphasis added). The 1983 guidelines

made no mention of a dual certification

requirement. The 1983 guidelines state in

pertinent part that:

Administrators will be selected for

reduction in force in a manner that is

fair and equitable after the

qualifications of the individuals

potentially involved have been reviewed.

R. 270. It is clear from our review of

the record that both the board and the

trial court based their findings on the

rescinded administrative reduction policy

of 1981.

One of the factors we consider in

reviewing a school board decision is

whether the board followed its own rules.

Mason at 451 N.E.2d 353. In this case it

did not. We must now determine if Stewart

was prejudiced by this failure.

-36-

The guidelines in effect at the time

Stewart’s contract was cancelled state

that reduction would be in a fair and

equitable wanner “after the qualifications

of the individuals potentially involved

have been reviewed." R. 270. At the time

Stewart’s contract was cancelled her

position was classified as

"“psychometrist". Board finding number 14

states in pertinent part that:

14. The procedure approved by the School

Board on November 23, 1981, to accomplish

the elimination of the psychometrist

position included the following:

ee @ @

2° Psychometrists .. . will be assigned

to the positions of

psychometrist/counselor.

x keke

S. The psychometrist/counselor position

will require certification as a

psychometrist and guidance counselor.

zx*rzeekee

8. In some situations it may be

necessary to give a guidance counselor or

-37-

:

:

psychometrist a period of time to fully

meet the certification requirements of the

position to which he/she is assigned.

R. 34 (emphasis added).

At the time Stewart’s contract was

cancelled two non-tenured employees were

retained in the psychometrist/counselor

position who were not certified

counselors. The school board contends

that they were more qualified than Stewart

because they had classroom teacher’s

licenses. However, a classroom teacher’s

license is only one of several

prerequisites for a counseling license.

530 IAC 2-1-11 (in effect at the time

Stewart’s contract was cancelled) .‘ At

the time of the school board action, title

510 article 12 of the Indiana

Administrative Code governed licensing

requirements for Pupil Personnel

Services.> Rule 2 of that article stated

that "{ajll personnel providing pupil

-38-

LP Di at Cell btRe ET

personnel service shall be properly

certified in their service area." 510 IAC

12-2-1(A) (emphasis added); see also

Switzerland County school Corporation v.

Sartori(1982), Ind. App., 442 N.E. 2d 702,

74, reh. denied, rans. denied, (discusses

importance of teacher licensing). During

the hearing conducted by the trial court

this rule was explained by Denny C.

Skeens, Director of Accreditation and

Facility Planning for the State Department

of Education. He testified that the

function of the Accreditation division was

evaluate schools to determine whether they

were complying with the "requirements of

the State Board of Education and state

statute." R. 345. Skeens testified that

the FWCS policy of allowing personnel

without a counselor’s license to serve in

the position of "psychometrist/counselor"

(including the "acting" category) was "in

-39-

violation of state rules". R. 349. We

agree.

The language of rule 2 clearly stated

that personnel "shall be properly

certified". Nevertheless, the _ school

board retained non-tenured employees who,

like Stewart, were licensed only in

psychometry, in the

psychometrist/counselor position.® The

school board cannot presume to create new

licensing requirements for teachers; this

responsibility has been delegated by the

legislature to the State Board of

Education. Currently at IC 20-1-1-6

(Burns Code Ed., 1988 Supp.).’? FWCS has

exceeded its authority and acted contrary

to law.

II.

Tenure Rights

Stewart also contends that the school

board action was contrary to law because

-40-

bisa ed ox

she had tenure while the other two

employees who were retained did not. She

cites Barnes v. Mendenhall (1932), 98 Ind.

App. 229, 183 N.E.556, and Watson vv.

Burnett (1939), 216 Ind. 216, 23 N.E.2d

420, in support of her position. In

Barnes the school board cancelled a

permanent teacher’s contract pursuant to

Chapter 97 of the Acts of 1927, page 259,

commonly known as the "Teachers ‘Tenure

Act". Although there have been a few

changes in the wording, and the section

has since been recodified, the substance

is the same as IC 20-6.1-4-9 and IC

20-6.1-4-10 under which Stewart’s contract

was cancelled. Chapter 97 provided that a

teacher who had served under five

successive contracts and who then entered

into a contract for further’ service,

thereby became a permanent teacher serving

under an indefinite contract. Section two

-41-

of the act provided that an indefinite

contract could be cancelled for certain

causes including a "justifiable decrease

in the number of teaching positions . .

os Grace Barnes, like Stewart, was a

permanent teacher serving under an

indefinite contract. The school board

cancelled her contact because of a

"justifiable decrease in the number of

teaching positions." Barnes at 98 Ind.

App. 232. Barnes appealed the decision of

the school board because other

non-permanent teachers who did not have

indefinite contract were filling positions

which Barnes was licensed to fill. The

court concluded that a permanent teacher’s

license could not be cancelled as long as

there were non-permanent teachers holding

positions which the permanent teacher was

licensed to fill.

The trial court concluded as a matter

-42-

of law that Barnes did not apply to

Stewart’s situation because Stewart "was

less qualified for the

psychometrist/counsel [sic] position than

anyone else retained in the position." R.

23. However, since we have determined

that the two non-permanent employees did

not have the proper certification for the

position, we cannot agree that Barnes does

not apply.

FWCS contends that Barnes does not

apply because Stewart is not a classroom

school teacher. Appellee’s Brief 33. As

we have already noted, FWCS has stipulated

that Stewart was a tenured teacher and

that her contract was cancelled pursuant

to the provisions of IC 20-6.1-4-10. That

section applies to permanent teachers with

indefinite contracts. Although’ the

current law does not use the _ term

"tenure", that term applies to permanent

-43-

teachers serving under indefinite

contracts. IC 20-6.1-1-8 (Burns Code Ed.,

1985 Replc.), defines the term "teacher"

as:

a professional person whose position in

the school corporation requires certain

teacher training preparations and

licensing. The term includes, but is not

limited to, any Superintendent,

supervisor, principal, attendance officer,

_ teacher, or librarian.

According to IC 20-6.1-1-4 (Burns Code

Ed., 1982 Supp.) :8

the term "license" refers to any document

issued by the commission on teacher

training and licensing, which’ grants

permission to serve as a particular kind

of teacher. the term includes, but is not

necessarily limited to, any certificate or

permit, issued by the commission on

teacher training and licensing.

Stewart had a school psychometrist’s

license which she professionalized by

meeting the licensing requirements of the

Commission on Teacher Training and

licensing for School Psychologist I. R.

162, 227; 530 IAC 2-1-11.9% Stewart is a

teacher according to the statutory

-~44-

" _—w sin

definition; therefore Barnes applies.

Applying the rule in Barnes to

Stewart’s situation we conclude that since

the two non-tenured employees were not

properly licensed, Stewart’s contract

should not have been cancelled.

IIl.

Section 1983

Stewart contends that she was denied

substantive due process by the arbitrary

and capricious conduct of the_ school

board. She seeks redress under 42 U.S.C.

section 1983,19 and attorney’s fees under

section 1988.

Stewart contends that she has been

deprived of a property right protected by

the due process clause of the Fourteenth

Amendment to the United States

Constitution. The United States Court of

Appeals for the Seventh Circuit,

addressing a claim by a non-tenured

-45-

v2) ies UR asa hao ee

“ante

teacher that her substantive due process

rights had been denied when she was

terminated, stated:

The claim that a person is entitled

to "substantive due process" means...

that state action which: deprives him of

life, liberty, or property must have a

rational basis -- that is to say, the

reason for the deprivation may not be so

inadequate that the judiciary will

characterize it as "arbitrary".

Jeffri Tur) : lidated Schoo]

District (7th Circ. 1974), 492 F.2d 1,

3-4. In order for Stewart to prevail ona

substantive due process claim she must

show that the cancellation of her contract

by FWCS constituted arbitrary action which

deprived her of an interest in liberty or

property to which she was entitled.

In Jeffries, the plaintiff did not

prevail because the court determined that

she had no liberty or property interest at

stake. Stewart, however, did have a

property interest to which she was

-46-

SE Le ee eel pet en

:

|

|

i

entitled by IC 20-6.1-4-9, which gave her

"permanent" status, and IC 20-6.1-4-10,

which set out limited grounds for the

cancelation of her contract. We have

already characterized the cancellation of

Stewart’s contract as unlawful; we must

now determine if the board = action

constituted an arbitrary deprivation of

property which entitles Stewart to

Fourteenth Amendment due process

protection.

Ball State University (1986), Ind.App.,

489 N.E.2d 616, 627, trans. denied, this

court state that:

in order to satisfy substantive due

process, an administrative decision must

be in accord with previously’ stated

ascertainable standards. The requirement

is to make certain that administrative

decisions are fair, orderly, and

consistent rather than irrational and

arbitrary. The standard should be written

with sufficient precision to give fair

warning as to what the agency will

consider in making its decision, and it

>

ee

should be made readily available co those

having potential contact with the

administrative agency.

(Internal quotation marks omitted;

citations omitted.) The ascertainable

standards in this case consisted of the

state licensing requirements and the FWCS

policy approved at the January 1983 board

meeting. If the board had followed these

standards its decision would have been

"fair, orderly, and consistent". However,

the board followed rescinded procedure

that was inconsistent with statutory

licensing requirements. The board

decision to cancel Stewart’s contract was

not made in accord with "previously stated

ascertainable standards", therefore, we

conclude that the board action was

irrational and arbitrary. FWCS has

deprived Stewart of a property interest

secured by the due process clause of the

Fourteenth Amendment. This deprivation

-48-

ees eros ee

entitles her to damages and equitable

relief pursuant to Section 1983, and to

attorney fees under Section 1988.

We reverse the judgment of the trial

court and remand to the trial court for

proceedings consistent with this opinion.

CHEZEM, J., CONCURS.

HOFFMAN, Joy DISSENTS WITH SEPARATE

OPINION.

DISSENTING OPINION

HOFFMAN, J.

I respectfully dissent from those

portions of the majority opinion

describing the school board’s action as

arbitrary and capricious. The majority

perceives that Stewart’s contract was

cancelled pursuant to the rescinded

administrative reduction policy, but a

thorough examination of the findings of

the board of school trustees discloses

reliance upon the revised guidelines

-49-

—s

sated ity ce Ce ee

Pe a at ite

AP AE ac at

pee reer

approved and authorized on January 24,

1983.

The revised guidelines for

administrative reductions provided in

pertinent part:

"1. Administrators are not subject to lay

off/recall in the same manner as are

teachers, and therefore, if there are more

administrative personnel under contract

than there are available positions, the

excess administrators will either be

reassigned or be subject to termination.

Administrators will be selected for

reduction in force in a manner that is

fair and equitable after the

qualifications of the individuals

potentially involved have been reviewed.

involved have been réviewed.

2. Re-assignments of some administrators

to different units and/or different

positions as a result of the reduction in

number of administrative positions may be

necessary.

Displaced administrators may be placed in

teaching positions according to their

seniority in the appropriate certification

group.

3 If there are displace

administrators who are not qualified for

any available position, the Board will be

asked to cancel the contract of those

administrators.

-50-

Stadt inte

Ce Cert eee er

|

|

The Superintendent’s recommendation for

cancellation of contracts will be made to

the Board of School Trustees at the second

meeting in March.

If there are administrators whose

contracts are to be cancelled, the

procedures followed will be those outlined

in the applicable state statutes. (IC

20-6.1-4 et seq.)"

The school board’s findings indicate

that administrative employees who worked

as psychometrists were re-assigned to

different positions as a result of the

elimination of the position of

psychometrist.

“29. - .- . All other administrative

employees who formerly worked as

psychometrists are employed as

psychometrist/counselors if they had a

counseling license, or as acting

psychometrist/counselors if they had only

a teacher’s license while they work toward

a counseling certificate in accordance

with the program approved by the School

board on November 23, 1981 (Board Exhibit

7).

= * ” * *

22. There is a justifiable need to

decrease the number of administrative

positions and to eliminate the position of

psychometrist.

-51-

ee ee

23. Neither North Central nor the

Department of Public Instruction require

[sic] any particular staffing levels for

psychometrists. Although Rule 5-1

(Exhibit G) issued by the Commission on

General Education of the Indiana State

Board of Education requires testing of

special education students, no permanent

employment of full-time psychometrists is

mandated. Therefore, the job of

psychometrist may be eliminated without

violating any rule or regulation of this

State or any accreditation requirements of

North Central."

Stewart, a displaced administrator under

the revised guidelines, was not qualified

for the position of

psychometrist/counselor or acting

psychometrist/counselor.

"20. Although Kathy Stewart has, since her

layoff in March of 1982, been working

towards a teacher’s license, one of the

prerequisites to a counseling license (see

Exhibit A), she still has over 30 hours of

studies to compete to obtain a teacher’s

certificate. She is the least senior in

terms of service with the Fort Wayne

Community Schools under regular contract

of all psychometrists holding only a

single certification (Board Exhibits 10

and i11)."

Because Stewart could not be re-assigned,

-52-

her contact was subject to termination.

i a en VENA PPS

14

;

"25. There are currently no job openings

for psychometrist/counselors. Kathy

Stewart has the least service under

regular contract of all certified

psychometrists who have no other

certification. There is no- other

administrative position which she is

qualified or certified to perform."

The findings of the school board with

respect to the cancellation of Stewart’s

contract reflected due consideration of

and compliance with the revised guidelines

for administrative reductions.?}

I cannot agree that the school board

failed to follow its own guidelines,

thereby rendering its action arbitrary and

capricious. Accordingly, I must dissent

from the majority’s conclusion’ that

Stewart is entitled to damages’ and

equitable relief under 42 U.S.C. § 1983.

I further dissent from the majority’s

conclusion that Stewart, as a tenured

teacher, could not be discharged while

-53-

LL

nontenured employees were retained as

acting psychometrist/counselors. The

majority bases its decision upon Barnes v.

Mendenhall (1932), 98 Ind. App. 229, 183

N.E. 556. In Barnes, this Court rejected

that proposition that a school board,

justifiably seeking to reduce the number

of teaching positions, has the discretion

to choose between tenured and non-tenured

teachers, both of whom are licensed to

fill the position which remains. Id. at

241-242, 183 N.E. at 560.

The reasoning from Barnes is

inapplicable to the facts of the case at

bar. The school board in the instant case

found that Stewart was not qualified for a

re-assignment to the position of acting

psychometrist/counselor. The position was

available to psychometrists who had

teacher’s licenses, and Stewart had yet to

obtain such license. Because the board

-54-

did not impermissibly choose between

equally qualified tenured and non-tenured

teachers, Barnes is inapposite.

For the foregoing reasons, I dissent.

ENDNOTES

1 Stewart earned the status of

"tenure™ pursuant to IC 20-6.1-4-9 (Burns

Code Ed., 1985 Replc.). This section

provides that:

(a) Each person who:

(1) Serves under contract as a

teacher in a public school corporation for

five [5] or more successive years; and

(2) at any time enters into a

teacher’s contract for further service

with that school corporation;

becomes by that a permanent teacher of

that school corporation. When a contract

between the school corporation and a

permanent teacher expires by its terms,

that contract is considered to continue

indefinitely as an indefinite contract.

(b) An indefinite contract remains in

force until the permanent teacher reaches

seventy-one [71] years of age, unless it

is:

(1) Replaced by a new - contract

signed by both parties; or

(2) Cancelled as provided in

sections 10 and 11 [20-6.1-4-10 and

20-6.1-4-11] of this chapter.

For purposes of this opinion we will use

the terms "tenure" and "permanent"

interchangeably.

-55-

é Section 10 provides a pertinent

part that:

(a) An indefinite contract with a

permanent teacher may be cancelled in the

manner specified n section 11

[20-6.1-4-11] of this chapter for only the

following grounds:

(1) Immorality;

(2) Insubordination, which means a

willful refusal to obey the state school

laws or reasonable rules prescribed for

the government of the school corporation;

(3) Neglect of duty;

(4) Incompetency;

(5) Justifiable decrease in the number of

teaching positions; or

(6) Other good and just cause.

3 Stewart was originally laid off on

March 22, 1982, pursuant to this dual

certification policy. However, upon the

recommendation of FWCS attorneys, Stewart

was re-employed for the 1982-83 school

year because proper contract cancellation

procedures had not been followed. When

the board gave her a contract for the

1982-83 school year she achieved the

status of a "permanent" teacher because

she had already served under five

successive contracts as required by IC

20-6.1-4-9.

4 This section was repealed in 1984.

Requirements for counselor are currently

found at 511 IAC 10-1-65.

S Transferred to 511 IAC 4-1;

counselors, psychometrists, and

psychologists I and II all fall under

-56-

Pupil Personnel services.

6 There is evidence in the record

that at east one of these employees

performed only the testing duties of

pscyhometrist although he carried the dual

title.

7 Although some of these sections

have been amended, and some added, since

the school board cancelled Stewart’s

contract in 1983, the point we make is

that the State Board of Education, ot the

school board, had the exclusive authority

to determine licensing requirements at

that time.

8 This section was amended in 1984

to change "commission on teacher training

and licensing" to "state board of

education". IC 20-6.1-1-4 (Burns Code

Ed., 1985 Replc.)

9 This section was transferred from

the Commission on Teacher Training and

Licensing to the State Board of Education

in 1984; these requirements are now found

at 511 IAC 10-1-68.

10 Section 1983, entitled "Civil

action for deprivation of rights" states

in pertinent part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State .. . subjects, or

causes to be subjected, any citizen of the

United State .. . to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws,

shall be liable to the party injured in an

action at law, suit in equity, or other

proper proceeding for redress.

-58-

ENDNOTES (DISSENT)

1 The school board’s discussion of

the rescinded policy merely supplied the

context for the board’s initial decision

to lay off Stewart.

IN THE SUPREME COURT OF INDIANA

APPEAL FROM THE WHITLEY CIRCUIT COURT

SHEPARD, Chief Justice.

This case presents the question whether

there are circumstances in which a tenured

teacher in Indiana may be discharged due

to a reduction in force when a non-tenured

teacher is retained in a position for

which neither one is fully qualified under

state law. We hold that the answer is

yes. Kathleen Stewart was hired by Fort

Wayne Community Schools as a psychometrist

in 1978. During her years with the school

system, the student population continually

declined, the property tax was frozen, and

federal funds were constricted. Under

these combined pressures, the school

-59°-

system was forced to reduce its teaching

and administrative staff, including its

staff of psychometrists.

In May 1981, Dr. William Anthis, the

superintendent of the school system, met

with the psychometrists, including

Stewart, to notify them of the impending

reductions in force. Dr. Anthis advised

them that as the adminiscrative staff was

reduced, those remaining would_need to be

able to wear a variety of professional

hats. He indicated that an employee who

held multiple certifications from the

state would have a better change of being

retained than an employee_who held only

one certificate. Stewart held only one

certificate, but she began to take

Classes toward her classroom teaching

certificate. In the fall of 1981 and the

summer of 1982, she took a total of

twenty-four hours of classes toward her

-60-

classroom teaching certificate, but she

stopped more than thirty hours short.

Preparing for reductions in personnel, in

November 1981 the school board decided to

combine the previously separate positions

of psychometrist and guidance counselor.

Under state law, guidance counselors were

required to have both a classroom teaching

certificate and a guidance counselor

certificate. The school board

acknowledged in its 1981 employment policy

that "(ijn some situations it may be

necessary to give a. . . Psychometrist a

period of time to fully meet’ the

certification requirements of the position

to which he/she is assigned." Those who

were to be retained but who were still

working toward a required certification

would hold the title of “acting

psychometrist/counselor." Stewart was not

certified as a classroom teacher or as a

-61-

iS Se

counselor.

During November 1981, a committee

interviewed all psychometrists and

counselors to determine who should remain

in the reduced number of combined

psychometrist/counselor positions. The

committee considered four factors: the

number of certificates held by the

applicant, the applicant’s interest,

seniority, - and other qualifications.

Stewart, of course, held only one

certificate. In addition, the committee

members felt that Stewart had not

exhibited much interest in pursuing her

counselor certificate. They noted, for

example, that she had responded

ambivalently to a questionnaire regarding

her preferred future assignments.

On March 22, 1982, Stewart was notified

that she would be laid off at the end of

the school year along with six other

-62-

employees. Of those being retained in the

acting psychometrist/counselor position,

two were non-tenured psychometrists who

held both psychometrist and teaching

certificates but did not hold counselor

certificates. Stewart complained to

Superintendent Anthis in writing:

In my interview with the committee, I was

asked for an instantaneous commitment

[sic] of intent to seek additional

certification in counseling. Since such a

commitment [sic] would mean a definite

change in lifestyle and career goals, this

kind of instantaneous ultimatum seems an

unfair labor practice. Indeed, to even

call this an interview when one is already

employed seems facetious and an intent to

escape fair labor practice.

Record at 137.

Because the board had failed to notify

Stewart that a state statute afforded her

the right to a pre-termination hearing,?}1

it decided to reinstate her for the

1982-83 school year as a psychometrist.

Apparently by virtue of this rehire,

Stewart obtained tenure. It is her status

-63-

as a tenured teacher that now serves as

the legal predicate for this lawsuit.

During the next school year, deputy school

superintendent Dr. James Robbins notified

Stewart by letter that the continuing

decline in student enrollment necessitated

further cutbacks in administrative

personnel. Dr. Robbins’ letter noted that

the school system needed employees with

dual certifications, that Stewart had only

a psychometrist certificate, and that

Stewart had less seniority than any other

psychometrist with a single certificate.

Dr. Robbins concluded his letter to

Stewart by stating that the superintendent

was recommending to the school board that

her contract be cancelled at the end of

the school year. His letter also informed

her that she could contest the

superintendent’s recommendation by

requesting a hearing with the’ school

-64-

i]

AEE II a eee one

board.

Stewart did request a hearing, and one was

held on March 14, 1983. At this hearing,

the superintendent presented the reasons

for his recommendation, and Stewart was

given an opportunity to respond and

present evidence. On March 28, 1983, the

school board released its findings and

conclusions. It decided that Stewart’s

contract should be cancelled, effective

June 17, 1983.

Stewart sued the school system in the

Whitley Circuit Court. Although Stewart’s

original complaint was not made a part of

the record on appeal, it appears’ she

Claimed a right to reinstatement and back

pay based on violations of Indiana’s

teacher tenure law, Ind. Code §

20-6.1-4-10 (West 1984), and 42 U.S.C. §

1983 (1988). Following a bench trial, the

trial court found for the school system.

-65-

sae th Po vast

sa se akc Pas mal hah Sm

Stewart appealed, and the Court of Appeals

reversed on both counts. Stewart v. Fort

Wayne Community Schools (1989), Ind. App.,

545 N.E.2d 7.

Because this Court has not addressed

directly the legal issues presented by the

discharge of tenured teachers in Indiana

since State ex rel. Thurston v. School

City of Anderson (1957), 236 Ind. 649, 142

N.E.2d 914, we grant transfer. We affirm

the trial court’s decision in favor of the

school systen.

This case presents two issues:

Zs Whether the school system’s decision

to discharge Stewart and retain

non-tenured personnel violated Stewart’s

rights under state law.

II. Whether the school system’s decision

to discharge Stewart constituted an

arbitrary and capricious deprivation of a

protected property interest in violation

of her federal constitutional right to

substantive due process and, thus, in

violation of her rights under 42 U.S.C. §

1983.

-66-

el le ae

I. Stewart’s State Law Claims

Stewart’s claims under state law

essentially fall into two categories.

First, she alleges the school system

violated the teacher tenure law, as that

law was interpreted in Watson v. Burnett

(1939), 216 Ind. 216, 23 N.E.2d 420.

Second, she alleges that the _ school

board’s decision was arbitrary and

capricious and not based on the evidence

before it.

The teaching profession in this state has

long enjoyed statutory protection. Since

the enactment of the teacher tenure law in

1927, now codified at Ind. Code § §

20-6.1-4-1 to -20 (West 1984 & Supp.

1990), - the Indiana legislature has

provided experienced teachers with a legal

shield that protects them from unjustified

dismissals. Under this law, teachers

attain tenure status after their fifth

-67<

i te ne TE

enh hare ttn

year of teaching. Ind. Code §

20-6.1-4-10(a) (5). The law also

prescribes procedures which must _ be

followed before a tenured teacher can be

discharged. Ind. Code § 20-6.1-4-11.

Stewart does not claim that any procedural

requirements were ignored by the board,

but she does contend that the board’s

decision to discharge her as part of a

reduction in force was illegal under the

teacher tenure law and was not supported

by the evidence.

Although the teacrner tenure law erects

many safeguards for tenured teachers, the

law does not prescribe that standard by

which courts are to review a_= school

board’s decision. to discharge tenured

personnel. While errors of law are

readily discerned and resolved by courts,

this statutory silence has generated much

confusion about the appropriate analysis

-68-

applicable to evidentiary error by boards.

For example, both petitioner and

respondent have assumed that the standard

was enunciated in Metropolitan School

District of Martinsville v. Mason (1983),

Ind. App., 451 N.E.2d 349. In that case,

the Court of Appeals considered whether a

school board’s decision to withhold a

school bus contract from the sole bidder

on grounds the bid was too high was either

“arbitrary, capricious" or "unsupported by

substantial evidence." Id. at 353. This

two-pronged inquiry into the _ factual

support for the decision was gleaned from

Indiana’s Administrative Adjudication Act.

Ind. Code § 4-21.5-5-14(d) (West Suppl

1990) (previously codified at Ind. Code §

4-22-1-18) .12 The Administrative

Adjudication Act, however, does not

control local school board

decision-making. See, e.g., Ind. Code §

-69-

4-21.5-1-3 (West Supp. 1990) (act does not

apply to agency of a political subdivision

of the state); and Tippecanoe Valley

School corp. v. Leachman (1970), 147 Ind.

App. 443, 261 N.E.2d 880 (local school

board exempt from the act’s requirements

because it is not a state-wide agency).

All in all, there seems to be little

réason to ask both whether a= school

board’s decision is “arbitrary and

capricious" and whether it is "unsupported

by substantial evidence." Whatever

differences exist between the two tests

create more confusion than they are

worth. }3

Instead, we hold that the "substantial

evidence" standard should be applied when

reviewing the evidentiary support behind a

school board’s decision. This standard

is, perhaps, the oldest standard of review

of administrative agency decisions and is

-70-

today the most commonly utilized one. See

5 K. Davis, Administrative Law Teatise §

29:5 at 350-51 (2d ed. 1984) (substantial

evidence" test first applied to

administrative agency decisions by the

U.S. Supreme Court in 1913 and

subsequentiy adopted by Congress as the

standard of review under the National

Labor Relations Act and the Fair Labor

Standards Act). The "substantial

evidence" test was set out by this Court

in the related cases of Stiver v. State ex

rel. Kent (1936), 211 Ind. 370, 1 N.E.2d

592, and Stiver _v. State ex rel. Kent

(1936), 211 Ind. 380, 1 N.E.2d 1006. In

the second Stiver opinion, we capsulized

the standard as_ follows: "If the

procedural requirements are followed,

including the assignment of a legal cause

for cancellation [of the contract], and if

there is substantial evidence presented

-JFl-

aces a alate ae as A i

A i at a Dts DAO

which tends to support the legal cause,

and if the hearing is, in fact, fair, the

proceeding is lawful." 1 N.E.2d at 1007.

Under the substantial evidence standard,

the reviewing court must consider the

record as a whole, not just the evidence

that is favorable to the school board’s

decision. A court may_vacate a_ school

board’s decision only if the evidence,

when viewed as a _while, demonstrates that

the conclusions reached by the _ school

board_are clearly erroneous. With this

standard of review established, we turn to

Stewart’s state law claims: first, that

the board’s decision violated the tenure

act, and second, that the board’s decision

was not supported by the evidence.

A. Stewart’s Teacher Tenure Rights

Arguing that the school board’s actions

were contrary to the teacher tenure law,

Stewart relies on Watson v. Burnett

@-72<

(1939), 216 Ind. 216, 23 N.E.2d 420. That

case presented an early opportunity to

explore the reach of the teacher tenure

law’s protections. Julia Burnett was a

tenured teacher licensed to teach only in

grades one through four. She was fired as

the result of a reduction in force.

Although the law permitted a school to

discharge a tenured teacher in that

situation, Burnett complained that

non-tenured teachers had been retained to

teach classes she was also certified to

teach. She argued that if the law’s

purposes were to be fully realized,

tenured teachers had to be given priority

over equally qualified non-tenured

teachers during reductions in force. This

Court agreed, and ordered the school board

to reinstate her.

Relying on the teacher tenure law and the

Watson decision, Stewart argues’ that

-73-

because both she and the two non-tenured

teachers lacked a counselor’s certificate

(one of the two certificates required by

state law for the guidance counselor

position), she was as "qualified" as they

were to hold the title "acting

psychometrist/counselor." As the only

tenured teacher among these three

"equals," Stewart claims the teacher

tenure law requires her to have _ been

retained. Her argument is unpersuasive.

Indiana Code § 20-6.1-4-10 and our

decision in Watson protect Stewart from

being fired before non-tenured teachers

due to a reduction in force only as long

as her qualifications make her eligible

for the job she seeks. Watson emphasized

that a tenured teacher must still be

"qualified to teach in the position for

which the non-tenured teacher is

retained." 216 Ind. at 221, 23 N.E.2d at

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423. This prerequisite is reiriforced by

regulations of the Indiana Department of

Education, which require that school

personnel, including guidance counselors,

be properly certified in their field. Ind.

Admin. Code tit. 511, r. 4-1-3 (1988).

Stewart’s own brief to the Court | of

Appeals concedes that she was unqualified

under state law to work as a counselor.

Brief at 23-24.

Our decision in Watson bestowed a powerful

sword on tenured teacher, and Stewart

naturally seeks to use it in her favor.

That sword, however, was designed to

enforce the teacher tenure law. It cuts

only in favor of the primary legislative

intent behind that act--the promotion of

the public good through the creation of a

competent cadre of teachers in the state.

The law is primarily intended to "promote

- »« « the welfare of the state and of the

-75<

school system by preventing the removal of

capable and experienced teachers at the

political or personal whim of changing

officeholders." State ex rel. Anderson v.

Brand (1937), 214 Ind. 347, 351, 5 N.E.2d

531, 532, rev’d on other grounds sub mon.

Indiana _ex rel. Anderson v. Brand, 303

U.S. 95 (1938); see also School City of

Lafayette v. Highley (1938), 213 Ind. 369,

376-77, 12 N.E.2d 927, 930 (purpose of the

act is to protect the educational interest

of the state, not to grant’ special

privileges to any class of teachers);

accord Note, Dismissal _ or Remova] of

Public School Teachers __Under__ Teacher’

Tenure Laws, 21 Notre Dame L. Rev. 25,

26-27 (1945). The sword may not be used

by a teacher to litigate her way into a

position that she is unqualified to hold

under state law. Cf£. Switzerland County

Schoo] Corp. yv. Sartori (1982), Ind. App.,

-76-

emma =a

_

‘1

eet ees eS UL le

442 N.E.2d 702 (rejecting teacher’s suit

seeking enforcement of contract with

school system on grounds that contract was

void because teacher lacked certificate to

teach in Indiana). Stewart does not

qualify for relief under the rule of

Watson v. Burnett, which rule requires the

tenured teacher to be as well qualified as

the non-tenured teacher who was retained.

The trial court correctly held that Ind.

Code § 20-6.1-4-10 had not been violated

by the school system.

B. Stewart’s "Substantial Evidence"

Argument

Stewart’s second state law claim is that

the school board’s decision is_- not

supported by the evidence before it.

After reviewing the record, we hold that

the board’s decision in this case was not

clearly erroneous.

Facing a declining student population and

@-JJ<

dwindling financial resources, the school

system was forced to reduce its teaching

and administrative staff. These

reductions were complicated by a variety

of pressures. First, many of the

teachers, like Stewart, had tenure rights

that had to be accommodated. Second, the

State of Indiana prescribed minimum

educational standards that further limited

the board’s flexibility. Third, the

private accreditation system prescribed

additional minimum standards that had to

be met if the school system was to retain

its accreditation. The board decided that

it could reduce its staff and still

satisfy these pressures by combining the

positions of psychometrist and guidance

counselor. In combining these positions,

however, the school board was forced to

choose between Stewart and two non-tenured

psychometrists. Both of the non-tenured

-78-

employees already had classroom teaching

certificates that enabled them to teach a

class or two should the need arise.

Stewart was not certified to teach in the

classroom. Had she been retained, the

board would have had to look elsewhere for

a certified classroom teacher. Moreover,

both of the non-tenured psychometrists

were closer to being certified as guidance

counselors, and they exhibited greater

willingness to pursue the certification.

Considering these factors along with the

rest of the record, the school board’s

decision to retain the non-tenured

psychometrists over Stewart was quite a

reasonable choice. The board’s decision

survives the substantial evidence test.

II. Stewart’s § 1983 Claim

Section 1983 of Title 4214 was originally

enacted as § 1 of the "Ku Klux Klan Act of

1871." That act was the federal

-79-

government’s reaction to an alarming

increase in racist violence in the South

during Reconstruction. Although

originally intended as a means of gaining

federal control over state officials who

failed to stop acts of violence against

blacks and Northern sympathizers

(particularly acts committed by the Klan),

§ 1983 has today developed into the

primary civil means to remedy violations

of the federal Constitution. 2 R.

Rotunda, J. Nowak & J. Young, Treatise on

Constitutional Law: Substance _and

Procedure § 19.13, at 762 (1986). State

courts may exercise concurrent

jurisdiction over § 1983 claims. Maine v.

Thiboutot, 448 U.S. 1, 3 n.1 (1980).

To make out a § 1983 claim, a plaintiff

must establish that a deprivation of

rights, privileges, or immunities secured

by the United States Constitution or

-80-

federal law resulted from conduct

occurring under the color of state law.

Here, Stewart claims that the_- school

board’s decision to fire her constituted

conduct under color of state law that

violated her constitutional right to

substantive due . process. The only

question that has been raised on appeal is

whether the school board’s action deprived

her of such a federal constitutional

right. We hold that it did not.

Substantive due process prohibits state

action which deprives one of life, liberty

or property without a rational basis for

the deprivation. Where the basis for such

state action is so lacking as to make it

“arbitrary and capricious," courts will

invalidate the action as violating

substantive due process. Stewart claims

that the school board’s decision to fire

her was arbitrary and capricious, and

-8li-

| j

deprived her of a property interest in her

job.

Although due process is a constitutional

right, its application to this case hinges

on whether our state law grants Stewart a

protectable property interest in her job.

The United States Supreme Court has said:

To have a property interest in a benefit

{such as a job] a person clearly must have

more than an abstract need or desire for

it. He must have more than a unilateral

expectation of it. He must, instead, have

a legitimate claim of entitlement to it.

Board of Regents v. Roth, 408 U.S. 564,

577 (1972).

In Speckman v. City of Indianapolis

(1989), Ind., 540 N.E.2da 1189, this Court

discussed the extent of a public

employee’s property interest in his job

within the context of procedural due

process. We held that a city park

director would have a protectable property

interest in his job if he could show an

entitlement to continued employment.

-82-

EDEL SLANE Llp BPA Pied eT NN oe

ec met Da Aaa AS Rn Min aL OAs edl GUS Poe Pein Fetes dO tba rea OF om OI Be Ne 9 ° c Loe. cae vem

fecdns en v . . whew ikea ace muda

Entitlement to a public job can arise from

contract or state law. City of Mishawaka

v. wart (1974), 261 Ind. 670, 310

N.E.2da 65.

In this case, Stewart does not have a

contractual claim to continued employment

beyond the 1982-83 school year. Her last

contract with the school system was for

only one year, and expired on June 17,

1983. However, we believe that her

statutory status as a tenured teacher does

vest in her a property interest in her job

that entitles her to the _ protections

afforded by substantive due process. We

have previously held that similar tenure

statutes vested other public employees

with protected property interests in their

jobs. See State ex rel. Felthoff v.

Richards (1932), 203 Ind. 637, 180 N.E.

596 (tenure statute confers on policeman a

protectable interest in his job), and City

-83-

ee ae

of Mishawaka v. Stewart, 261 Ind. at 676,

310 N.E.2d at 68 (applying Felthoff to

firemen). Both of these cases noted that

tenure statutes were intended to encourage

the creation of an apolitical, merit-based

work force in vital areas of government

service. Because the teacher tenure act

was passed with this same purpose in mind,

it ought to confer on a teacher an equally

secure property interest.

Because Stewart has a property interest in

her job, the United States Constitution

protects her from being deprived of her

job for arbitrary and capricious reasons.

She claims that the school pboard’s

decision was arbitrary and capricious for

two reasons--it violated Indiana’s teacher

tenure law and the school board’s own

employment policies. We have already

rejected the first possibility. See supra

part I(B). As explained below, we also

-84-

reject the second.

Stewart argues that the school board’s

decision violated its January 1983

employment policy in two ways. First,

Stewart claims that the school board

improperly applied the dual certification

requirement contained in the old 1981

employment policy when it decided to

terminate her. She argues this was

improper because the dual certification

requirement was officially rescinded by

the 1983 policy. This argument is without

merit. Stewart’s attorney did not argue

at the school board hearing March 1983

that the dual certification requirement

had been rescinded by the 1983 policy, nor

did he try to enter the 1983 policy into

evidence at the school board hearing.

Although the 1983 policy did rescind the

formal 1981 policy statement, it is clear

that the board’s interest in having

-85-

personnel with dual certifications

survived. The 1983 policy, itself, did

not expressly rescind the dual

certification r squirement. On the

contrary, the dual certification

requirement took on a life of its own,

outside of the confines of the formal 1981

policy statement. The formal 1981 policy

was not the only way Stewart had heard

about the importance of having dual

certifications. Dr. Anthis also informed

the psychometrists in 1981 that the school

system was beginning a belt-tightening

period, and that employees with dual

certifications had the best chance of

being retained. Moreover, Stewart has

never argued that she stopped working on

her classroom teaching certificate because

of her belief that the dual certification

requirement had been rescinded by the 1983

policy. Indeed, Stewart stopped working

-86-

on her second certificate after the summer

1982--six months before the 1983 policy

was even announced.

Second, Stewart argues that the _ school

board ignored its 1983 policy by failing

to cite the policy in its findings. We do

not believe that the 1983 policy was

ignored by the school board. The 1983

policy enunciated only a very general

standard which left the board with a large

degree of discretion. It stated only that

the reductions in administrative staff

would occur in a "manner that is fair and

equitable after the qualifications of the

individuals potentially involved have been

reviewed." Record at 270. Although not

reproduced verbatim in the board’s

findings, this standard was fully met.

Stewart was permitted to present her

qualifications to the board during her

hearing. In light of all the evidence

-87-

presented to the board, including the

evidence that was adverse to Stewart’s

case, the board’s decision was "fair and

equitable," and thus in full compliance

with its 1983 employment policy.

Because the school board’s decision to

terminate Stewart did not violate either

state law or its own employment policy, it

was not arbitrary and capricious. Without

an arbitrary and capricious government

decision to support her substantive due

process claim, Stewart’s derivative § 1983

claim fails. The trial court was correct

in finding for the school system on this

claim.

The trial court is affirmed.

FOOTNOTES

+ Ind. Code § 20-6.1-4-11 (West

1984).

“ Although Mason did not directly

cite to the Administrative Adjudication

Act, it did cit to other adminstrative law

cases that involved the act. 451 N.E.2d

-88-

at 353 (citing to Natural Resources

, 428 N.E.2d 92, 97

(Ind. App. 1981) (stating the act’s

standard of judicial review of

administrative decisions) ).

3 The leading scholar on

administrative law, Professor Kenneth Culp

Davis, has stated that no other area of

administrative law is in more need of

general reform than the common law of the

state courts concerning standards of

judicial review. K. Davis, Administrative

Law Text § 24.01 at 458 (West 3d ed.

1972). Davis noted in his most recent

treatise on the subject that the best way

to reform this area of the law would be to

simply the standards. "Everyone .. .

should learn from the experience of the

past quarter of a century that refining

the verbalisms about scope of review is

not merely unprofitable but harmful." 5 K.

Davis, Administrative Law Treatise § 29:7

at 363 (2d ed. 1984).

4 "Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State .. .

subjects, or causes to be subjected, any

citizen of the United States ... to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured

in an action at law, suit in equity, or

other proper proceeding for redress."

42 U.S.C. § 1983 (1988).

CLERK OF THE SUPREME COURT

COURT OF APPEALS AND TAX COURT

-89-

KATHLEEN ANN STEWART <-VS- FORT WAYNE

COMMUNITY SCHOOLS

You are hereby notified that the

Supreme Court has on this day 3/21/91

Appellant’s Petition for Rehearing is

hereby denied without opinion. Randall T.

Shepard, Chief Justice.

All justices Concur.

Appellant’s Petition for oral argument is

hereby denied. Randall T. Shepard, Chief

Justice.

All justices concur.

WITNESS my name and the seal of said

Court, this 21st day of March, 1991.

Clerk Supreme Court, Court of

Appeals and Tax Court

-90-