Opposition Brief — Stewart v. Fort Wayne Community Schools

Bupreme Court, U.S.

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erg 4/ -/ C | OFFICE OF THE ail

IN THE

SUPREME COURT OF THE UNITED STATES

JULY TERM, 1991

KATHLEEN ANN STEWART,

Petitioner,

vs.

FORT WAYNE COMMUNITY SCHOOLS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

*James P. Fenton

Thomas M. Kimbrough

Kevin K. Fitzharris

BARRETT & MCNAGNY

215 East Berry Street

Fort Wayne, Indiana 46802

(219) 423-9551

Counsel for Respondent,

Fort Wayne Community Schools

*Counsel of Record

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JULY TERM, 1991

KATHLEEN ANN STEWART,

Petitioner,

vs.

FORT WAYNE COMMUNITY SCHOOLS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

*James P. Fenton

Thomas M. Kimbrough

Kevin K. Fitzharris

BARRETT & McCNAGNY

215 East Berry Street

Fort Wayne, Indiana 46802

(219) 423-9551

Counsel for Respondent,

Fort Wayne Community Schools

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

Whether the decision of the Fort Wayne

Community Schools to discharge Kathleen Ann

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.

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TABLE OF CONTENTS

Opinions Below............ eerrerT Tee

TUTLSGISCION. cc cccvee jie wee ee 060 coe

Statutes and Constitutional

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BeOtememe Cl CHD COBO. ce ccessceccoee

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Reasons for Denying the Writ.........

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TABLE OF AUTHORITIES

Cases

Page

Board of Regents v. Roth, 408

U.S. 564, 33 L.Ed.2d 548,

Oe ae, SUPER de teccceccccvves 12

C i "J neds Memietet

Fissel", 358 U.S. 423, 3 L.Ed.2d

“3. Si ge ee 14

Jeffries v. Turkey Run

: i intee Bekant Mtatcict .

ke oe” BS ey oR SY) eee 13

,

Korf v. Bal] State University

726 F.26 i222 (7th Cir. 1964)........ 13

Perry v. Sinderman, 408

U.S. 593, 33 L.Ed.2d 570,

ee 12

Rudolph v. U.S., 370 U.S. 269,

8 L.Ed.2d 484, 82 S.Ct. 1277

eae re Mere Ge ae eile « o:6 00.4 14

Southern Power Company VV. Pub |

Service Company, 263 U.S. 508,

68 L.Ed. 413, 44 S.Ct. 164

Sa teed Okc duaede cen veeaee sa 14

Statutes

Be Re | BAe Pe ay ee er 3

I ol hr ee oan 4

Supreme Court Rule 17.1(C)........... 15

IN THE

SUPREME COURT OF THE UNITED STATES

JULY TERM, 1991

KATHLEEN ANN STEWART,

Petitioner,

vs.

FORT WAYNE COMMUNITY SCHOOLS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

OPINIONS BELOW

On November 4, 1988, the Whitley

Circuit Court (Whitley County, Indiana),

entered judgment in favor of Respondent,

Fort Wayne Community Schools ("FWCS"),

affirming the School Board's decision to

cancel Petitioner's, Kathieen Ann Stewart's

a

("Stewart"), contract with the school

district.

In a published opinion issued

October 16, 1989, the Court of Appeals for

the Third District of Indiana reversed

judgment for FWCS and remanded to the Trial

Court for proceedings consistent with its

Opinion that FWCS wrongfully terminated

Stewart.

On December 27, 1990, the Supreme

Court of Indiana, by a published opinion,

reversed the Appellate Court's ruling and

affirmed the Trial Court's decision

declaring the School Board's decision to

cancel Stewart's contract with the School

Board lawful.

On March 21, 1991, the Supreme Court

denied Stewart's Petition For Rehearing

Without Opinion.

All Court entries listed above are

contained in Petitioner's Appendix for Writ

of Certiorari.

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JURISDICTION

Stewart's Petition for Writ of

Certiorari arises from the denial of

Petitioner's Request For Rehearing by the

Supreme Court of Indiana on March 21,

1991.

Jurisdiction of this Court is invoked

by Stewart under 28 U.S.C. §1257.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The statutes and constitutional

provisions relevant to Stewart's petition

for Writ of Certiorari are contained in

Stewart's Petition.

STATEMENT OF THE CASE

Stewart brought an action against FWCS

when FWCS cancelled her contract with the

school district.

On November 4, 1988, the Whitley

Circuit Court, by The Honorable Edward J.

Meyers, entered judgment in favor of FWCS

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declaring

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all statutory procedures

the cancellation of Stewart's

contract were followed by FWCS. In

addition,

the Trial Court found no evidence

was submitted nor advanced by Stewart to

Support a

claim based on a violation of

substantive due process.

The Court of Appeals for the Third

District of Indiana reversed judgment in

favor of FWCS and found the School Board's

action in

arbitrary

rescinded

rescinded

contract,

FWCS were

depriving

cancelling Stewart's contract was

and capricious by following a

policy. Because FWCS followed a

policy in cancelling Stewart's

the Court found the actions of

arbitrary and capricious

Stewart 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.

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The Supreme Court of Indiana disagreed

with the Court of Appeals and ruled in

favor of FWCS declaring the decision of the

School Board to discharge Stewart was not

arbitrary and capricious giving rise to a

§1983 action. The Court found the new 1983

policy did not expressly rescind the dual

certification requirement of the prior 1981

policy. In addition, even if it could be

argued the new policy did rescind the old,

the Court found the 1983 policy was not

ignored by the School Board in deciding to

cancel Stewart's contract. The 1983 policy

enunciated only a very general standard

which left the Board with a large degree of

discretion. It stated only 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."

(R. at 270). In light of all the evidence

presented to the Board by Stewart,

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including the evidence that was adverse to

her case, the Board decision was fair and

equitable, and thus in full compliance with

OR Aiton he Slt NA Ng 00

its 1983 employment policy.

Relevant Facts

Stewart was hired by FWCS 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 system was forced to

reduce its teaching and administrative

staff, including its staff of

psychometrists. In May of 1981,

Dr. William Anthis, the Superintendent of

the school system, met with the

psychometrists, including Stewart, to

notify them of the impending reductions in

é eh AO a, A iy Hees

force. Dr. Anthis advised them that as the

' administrative staff was reduced, those

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remaining would need to be able to wear a

variety of professional hats. He indicated

that an employee who held multiple certifi-

cations from the State would have a better

chance of being retained than an employee

who held only one certificate. Stewart

held only one certificate, but began taking

classes towards a classroom teaching

certificate. In the fall of 1981 and the

summer of 1987, she took a total of 24

hours of classes toward a classroom

teaching certificate, but stopped more than

30 hours short of achieving this license.

Preparing for reductions in personnel,

in November of 1981 the School Board

decided to combine the previously separate

positions of psychometrists and guidance

counselors. 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

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Policy that in 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 nor as a counselor.

During November of 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 Stewart had not exhibited much

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a

interest in pursuing her counselor

certificate. They noted, for example, that

she had responded ambivalently to a

questionnaire regarding her preferrei

future assignments. More specifically,

Stewart turned in her preference sheet nine

days after it was due and put a question

mark in the box for psychometrist/counselor.

On March 22, 1982, Stewart was

notified she would be laid off at the end

of the school year along with six other

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

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a definite change in

lifestyle and career goals,

this kind of instantaneous

ultimatum seems an unfair

1 labor practice. Indeed, to

even call this an interview

when one is already employed

seems facetious and an

attempt to escape fair labor

practice.

(R. at 137).

Because the Board failed to notify

Stewart that a state statute offered her

the right to a pre-termination hearing, it

decided to reinstate her for the 1982-83

school year as a psychometrist. By virtue

' of this re-hire, Stewart obtained tenure.

' It is her status as a tenure teacher that

serves as the legal predicate for Stewart's

lawsuit.

During the next school year, Deputy

Superintendent Dr. James Robbins notified

Stewart by letter that the continuing

decline in student enrollment necessitated

further cut-backs in administrative

- personnel. Dr. Robbins’ letter noted the

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> 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 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

she could contest the Superintendent's

recommendation by requesting a hearing with

the School Board.

Stewart did request a hearing, and a

hearing 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 Stewart's contract

should be cancelled, effective June 17,

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1983. Thereafter, Stewart sued the school

system in the Whitley Circuit Court.

REASONS FOR DENYING THE WRIT

Stewart was a tenured teacher pursuant

to the Indiana Teacher Tenure Statute. As

such, Stewart had a property interest in

her job that is protected by the Fourteenth

Amendment. Board of Regents v. Roth, 408

U.S. 564, 33 L.Ed.2d 548, 92 &.Ct. 2701

(1972); Perry v. Sinderman, 408 U.S. 593,

33 L.Ed.2€ $70, 92 &.Ct. 2694 (1972).

Stewart does not submit her procedural due

process rights under the Fourteenth

Amendment were violated when she was

terminated. Indeed, such a submission

would fail. Stewart was notified the

Superintendent of FWCS was recommending to

the School Board her contract be cancelled

and she could contest the Superintendent's

recommendation by requesting a hearing with

the School Board. After a hearing was

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requested, the Superintendent presented the

reasons for his recommendation and Stewart

was given an opportunity to respond and

present evidence. Instead, Stewart

contends her substantive due process rights

under the Fourteenth Amendment were

violated when her contract was cancelled.

A claim that one is entitled to

substantive due process means that state

action which deprives him/her 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. Jeffries v. Turkey Run

Consolidated School District, 492 F.2d 1

(7th Cir. 1974). Applying this principal

to the instant action, the doctrine of

pubétentive due process provides the

ections of the School Board in terminating

Stewart's contract must not be “arbitrary

and capricious." Korf v. Bal] State

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University, 726, F.2d 1222 (7th Cir. 1984).

Stewart contends the action of the School

Board in cancelling her contract was

arbitrary and capricious because the Board

relied on the 1981 Employment Policy rather

than the 1983 policy. Thus, Stewart calls

upon this Court to make a factual

determination: Whether the School Board

solely relied upon the 1981 policy in

terminating her employment with FWCS.

This Court has previously declared

that a Petition for Writ of Certiorari will

not be granted where the case involves

merely a review of findings of fact which

would be of no importance save to the

litigants themselves. Rudolph v. U.S., 370

U.S. 269, 8 L.Ed.2d 484, 82 S.Ct. 1277

(1962); Crumady v. "Joachim Hendrick

Fissel", 358 U.S. 423, 3 L.Ed!2d 413, 79

S.Ct. 445 (1959); Southern Power Company v.

Pub Service Company, 263 U.S. 508, 68 L.Ed.

413, 44 S.Ct. 164 (1924). Stewart's

ant.

Petition for Writ of Certiorari is such a

case. The Trial Court and the Supreme

Court of Indiana previously determined Fwcs

did not expressly rescind the dual

certification requirement of the 1981

policy and did not ignore the 1983 policy

in terminating Stewart. Unhappy with the

result obtained in the Trial Court and the

Indiana Supreme Court, Stewart seeks to

take the U.S. Supreme Court on a journey

back to Indiana to redetermine whether FWCS

based its decision to terminate her

contract solely on the 1981 policy. Such a

journey would not include the consideration

of an “important question of federal

law..." as required by Supreme Court

Rule 17.1(C), but rather a review of the

facts of no more importance than to the

litigants themselves. Hence, this case is

a poor candidate for certiorari in view of

the limited number of parties affected.

Another determination of which poiicy FWCS

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relied upon in terminating Stewart would

’ not create rights or obligations of

universal application. Even if this Court

would review the facts of this case once

again, it would find FWCS did not expressly

rescind the dual certification requirement

of the 1981 policy and did not ignore the

1983 policy in terminating Stewart.

Stewart claims 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 in March of 1983

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

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4 1983 policy did rescind the formal 1981

policy statement, it is clear the Board's

interest in having personnel with dual

; certification s rvived. The 1983 policy,

I itseit, did not expressly rescind the dual

' certification requirement. On the

contrary, the dual certification

requirement took on life of its own,

outside 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 informed the

psychometrists in 1981 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 she

stopped working on her classroom teaching

certificate because of her belief the dual

certification requirement had been

rescinded by the 1983 policy. Instead,

acmnatges

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}Stewart stopped working on her second

)certificate after the summer of 1982, six

J months before the 1983 policy was even

announced.

Stewart also argues the School Board

| ignored its 1983 policy by failing to cite

| the policy in its findings. The 1983

> policy was not ignored by the School

’ Board. The 1983 policy enunciated only a

very general standard which left the Board

j 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.”

(R. 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 presented to the Board,

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including the evidence that was adverse to

Stewart's once, 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 its own employment policy, it was

not arbitrary and capricious. Without an

arbitrary and capricious governmental

decision to support her substantive due

process claim, Stewart's §1983 claim fails.

CONCLUSION

For the reasons set forth above, it is

respectfully submitted this Petition for

Writ of Certiorari should be denied.

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‘Respectfully submitted,

BARRETT & MCNAGNY

By

es P. Fenton

15 East Berry Street

P.O. Box 2263

Fort Wayne, IN 46801

(219) 423-9551

Counsel for Respondent,

Fort Wayne Community Schools