# Brief for the Respondent in Opposition — Pordum v. Board of Regents of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2060%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1974 - **Citation:** 419 U.S. 843 ## Text Pets, tye KerrAh —_ -s = IN THE AUG 21 19 Supreme Court of the United Sipe wo OCTOBER TERM, 1973 No. 73—1963 Freperick F. Porpum, Petitioner, against Boarp oF REGENTS OF THE StaTE oF New York and Ewaip B. Nyquist, THE CoMMISSIONER OF EDUCATION OF THE State oF New York, and tHE Ciry Scuoou District oF THE City or LacKAWANNA, Respondents. On PETITION FoR A Writ oF CERTIORARI TO THE UNITED States Court oF APPEALS FOR THE SECOND CircvultT BRIEF AND APPENDIX IN OPPOSITION FOR RESPONDENTS BOARD OF REGENTS & COMMISSIONER OF EDUCATION Louis J. LEFKow1Tz Attorney General of the State of New York . Attorney for Respondents Board of Regents € Commissioner of Education Two World Trade Center New York, New York 10047 \ Samve. A. HirsHowrrTz First Assistant Attorney General Marcery Evans REIFLER Deputy Assistant Attorney General of Counsel TABLE OF CONTENTS \ PAGE NE IED oo ve tas ce anepsysadcauns ie Vevin es 2 IN. 5G > cin nb paths vin £49 634006.68 3 on dae avacus 2 SD BN cos iw bade she hase kueeeeenwes 2 See PND IE 5 ook Ado ba 0 dein chhbua sce cess 2 I EE Oo Sie do vis'n ccs ao caN nae eeeees 3 Reasons for Denying the Petition for Certiorari ... 5 I. Petitioner has failed to present any factor which would motivate the exercise of this Court’s certiorari jurisdiction .......... 5 RII. i Cea wiv tccor cues cease cos ewatee cares 9 Ce Pe TOP PP ere re ry err ee oD tae 13 \ Cases CITED \ Adler v. Board of Education, 342 U.S. 485 (1952) .... 8 Arnett v. Kennedy, —— U.S. ——, 94 S. Ct. 1633 NEN onthe Cis sac enchbhccckkdadevaneerseke 6,8 Beilan v. Board of Education, 357 U.S. 399 (1958) .. 7,8 Board of Regents v. Roth, 408 U.S. 564 (1972) ...... 7 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........ 6, 7 Brown v. Board of Education, 347 U.S. 483 (1954) .. 7 Civil Service Commission v. Letter Carriers, 413 U.S. Be MEE Pease oSavines trace bates avauhcnaeus \7 TR, ETS ARE eT ii TABLE OF CONTENTS Ex Parte Poresky, 290 U.S. 30 (1933) ............ Goosby v. Osser, 409 U.S. 512 (1973) .............. In re Grossman, 127 N.J. Super. 13, 316 A. 2d 39 CRI, TIEN TPO iv nnca cede ncabuncccesesycanss Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938) Lehman v. Board of Accountancy, 263 U.S. 394 (1923) Lindsay v. Normet, 405 U.S. 56 (1972) ............ Matter of Hoffman, 39 N.Y. St. Dept. Rep. 346 (1930) Matter of Lynch v. Nyquist, 34 N Y 2d 588 (1974), affg. 41 A D 2d 363 (3rd Dept. 1973) .......... Matter of Pryor, 38 N.Y. St. Dept. Rep. 115 (1928) Matter of Quinn, 67 N.Y. St. Dept. Rep. 7 (1946) .... McGowan v. Maryland, 366 U.S. 420 (1961) ........ Mitchell v. Donovan, 398 U.S. 427 (1970) ............ Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) ... Morrissey v. Brewer, 408 U.S. 471 (1972) ........... Parker v. Levy, —— U.S. ——, 42 U.S.L.W. 4979 CD CEE coh 56 cc'ch apenas abseekas abies Perry v. Sinderman, 408 U.S. 593 (1972) .........05. Purifoy v. State Board of Education, 30 Cal. App. 3d 187, 196 Cal. Rptr. 201 (Ct. of App., First District SE ai Sckcks debe kah Scab raudee eee aca eehe Richardson v. Belcher, 404 U.S. 78 (1971) .......... San Antonio School District v. Rodriguez, 411 U.S. 1 EE catihs weve eect hte ane hewetancen sis Tigner v. Texas, 310 U.S. 141 (1940) ............... Weiss v. O’Hara, F. Supp. ——,, 73 Civ. 264 (S.D. N.Y.) (three-judge court) (May 8, 1973) ....... bn eke the as eae aS asthe TABLE OF CONTENTS iii STaTUTES PAGE Be WINE oN CAN eek ch babii esaerheciesea 3 Se Se EE xD OV SC oe caOo NO NoMW Ee he cocebes 3,5 Se es ED 50 8 608 065 bo hecin aca es nddnaes 2 EE Fa isk 600-454 be Reseed bene es crcnene 3 N. Y. Civil Practice Law & Rules, Art. 78 .......... 6 N. Y. Education Law § 305(7) ..........cccccceees passim Bis Bx MO BA OO 6 ov ccecctrscvevecssncaves 3 fim ee Dk fat a Ads hs STR eee ged Se eS YS aR ERIN MRA aTL IN THE Supreme Court of the United States OCTOBER TERM, 1973 a No. 73—1963 7% vv Freperick F. Porpum, Petitioner, against Boarp oF Recents oF THE State oF New York and Ewarp B. Nyquist, THE CoMMISSIONER OF EDUCATION OF THE State or New York, and tHe Criry Scuoou District or THE Crry or Lackawanna, Respondents. On Petition For A Writ or CERTIORARI TO THE UNITED States Court or APPEALS FOR THE SeconpD CiRcuIT dp. 7 BRIEF IN OPPOSITION FOR RESPONDENTS BOARD OF REGENTS & COMMISSIONER OF EDUCATION Respondents Board of Regents of the State of New York and Ewald B. Nyquist, Commissioner of Education of the State of New York [hereinafter state respondents] oppose the petition for a writ of certiorari to review the decision of the Court of Appeals for the Second Circuit, dated Feb- ruary 20, 1974. That decision affirmed the opinion and order of the United States District Court for the Northern District of New York, dated April 26, 1973, which denied petitioner’s application to convene a three-judge court and dismissed the complaint for want of a substantial federal question. AIEEE AS NE ROSEN SEN CLT CIR BUR. Toh 1H ial ed < GAKUIN St Octet BE AA HR a AO LA Ck ae Boe ltmvampe Nit Ab: Sail ed 0 Mable hee seat pani is Pat Opinions Below The opinion of the Court of Appeals is reported at 491 F. 2d 1281 and reproduced in Appendix A to the petition at pp. 39-51. The opinion of the District Court is reported at 344 F. Supp. 964 and is reproduced in Appendix B to the petition at pp. 52-59. Jurisdicti The judgment of the United States Court of Appeals for the Second Cireuit was entered on February 20, 1974. In an order dated April 4, 1974 that Court denied the petition for a rehearing en banc. Petitioner invokes the jurisdic- tion of this Court pursuant to 28 U.S.C. § 1254(1). Question Presented 1. Has petitioner presented any factor which would mo- tivate the exercise of this Court’s certiorari jurisdiction? State Statute Involved New York Education Law: “§ 305. General powers and duties. The commissioner of education is hereby charged with the following powers and duties: 7. He may annul upon cause shown to his satisfac- tion any certificate of qualification granted to a teacher by any authority whatever or declare any diploma issued by a state teachers college and state colleges for teachers ineffective and null as a qualification to teach a common school within this state, and he may 3 reconsider and reverse his action in any such matter. § 308. Other powers. - . > The commissioner of education shall also have power and it shall be his duty to be instituted such proceedings or processes as may be necessary to prop- erly enforce and give effect to any provision in this chapter or in any other general or special law per- taining to the school] system of the state or any part thereof or to any school district or city. He shall pos- sess the power and authority to likewise enforce any rule or direction of the regents.” Statement of the Case This action was commenced in march of 1973 pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. $1983. Petitioner chal- lenged the validity of Section 305(7) of the New York Education Law, which gives the Commissioner of Educa- tion the power to annul upon cause shown to his satis- faction any certificate of qualification granted to a teacher. Since petitioner sought to enjoin the operation of this statute, he sought the convening of a three-judge court. Petitioner is a tenured teacher in the Lackawanna, New York school district. He holds a New York State teaching certificate issued to him by the Commissioner of Education. In 1967 the school district granted him a two-year leave of absence. The leave was subsequently extended for an addi- tional three years, to expire on January 1, 1973. In June of 1971, while petitioner was a member of the Erie County Legislature, he was convicted in the United States District Court for the Western District of New York of the crime of conspiracy to promote and facilitate the promotion of bribery, a felony under 18 U.S.C. § 371. He was sentenced to a term of imprisonment of three years. 3 4 3 3 ~~ dip, Uk thas, icin here PK bee vibe ed Bi a ey ee ee eee ee ae fee ee er we rs On December 22, 1972 petitioner was released from prison on parole. On December 29, 1972 he wrote to the school district stating that his leave of absence was about to expire and that he was ready to resume his duties as a teacher. The school district replied by a letter dated Jan- uary 24, 1973 informing him that he was assigned to Wilson Elementary School, effective February 1, 1973, the begin- ning of the new school term. On January 24, 1973, upon learning of this assignment, the Commissioner of Education wrote to petitioner order- ing him to show cause on February 15, 1973 at a hearing why his teaching certificate should not be revoked, pur- suant to §305(7) of the Education Law, as a consequence of the conviction which created substantial doubt as to his fitness to teach in the public schools. A separate letter to plaintiff’s counsel stated that the hearing would be con- ducted before a hearing officer in accordance with “estab- lished administrative procedures”; specifically, that peti- tioner would be afforded the opportunity to present evidence in his behalf and to cross-examine witnesses; and that a stenographer would be present to prepare a tran- script of the proceedings. In a further separate letter dated January 24, 1973 the Commissioner ordered the school district not to re-employ petitioner pending the outcome of the February 15 hear- ing. The school district advised petitioner of this fact on January 30, 1973. Petitioner refused to comply with the hearing procedure. At his request the hearing was adjourned until! March 30, 1973. On March 8, he commenced this action in the District Court. The Commissioner is and has been at all times prepared to go forward with the hearing. The school dis- trict asserted that it was prepared to immediately re- employ petitioner, without a hearing, despite his conviction and parole status. Although nominally a defendant in 5 the action, the school district joined in petitioner’s applica- tion for immediate reinstatement. The school district has not appeared in any court proceeding since that time. Before the District Court, petitioner contended that Section 305(7) violated his right to due process be- cause it was vague and indefinite and procedurally de- fective; violated the equal protection clause; and was overbroad and potentially chilling of his First Amend- ment rights.* Applying the standards of Goosby v. Osser, 409 U.S. 512 (1973), the District Court concluded that petitioner’s claims were either foreclosed by previous de- cisions of this Court or obviously without merit and re- fused to convene a three-judge court. Since the complaint failed to present a substantial federal question which would support the Court’s jurisdiction under 28 U.S.C. § 1343(3), the complaint was dismissed. The Court of Appeals affirmed. Reasons for Denying the Petition for Certicrari Petitioner has failed to present any factor which would ates en tee of this Court tiorari jurisdicti Since the courts below found petitioner’s claims either foreclosed by previous decisions of this Court or obviously without merit, a fortiori they failed to present a substan- tial federal question, and the complaint was dismissed without the necessity of convening a three-judge court. Goosby v. Osser, supra; Mitchell v. Donovan, 398 U.S. 427 (1970) ; Ex Parte Poresky, 290 U.S. 30 (1933). Petitioner now asserts that this decision was erroneous. On the con- trary, the state respondents suggest that petitioner’s con- tentions are frivolous and fail to suggest any factor which * Petitioner has not pursued his First Amendment claim in this ys UAb GS RA eh a ea Nak al a a a ec | NG Aaa NPY IPE tae Wha ph ate ks Lew wear Ts Ce eee eb: Dae aside 6 would motivate the exercise of this Court’s certiorari jurisdiction. a. Since petitioner received notice of the charge against him and was provided with an opportunity for a hearing, with statutory provision for judicial review from an un- satisfactory ruling (New York Civil Practice Law and Rules, Article 78; Matter of Lynch v. Nyquist, 34 N Y 2d 588 [1974], affg. 41 A D 2d 363 [3rd Dept. 1973]), his con- tention that Section 305(7) fails to spell out this adminis- trative procedure in detail is frivolous and presents no basis for certiorari review.* Actually, such procedure has always been accorded when the annulment of certification or other disciplinary procedure is involved (A. 56-57).** Moreover, since the decision below, the Commissioner has adopted a regulation setting forth the procedure to be used in certification annulment proceedings, including situations wherein a teacher has been convicted of a crime (repro- duced in the appendix to this brief, effective September 1, 1974). The suggestion that the Commissioner might not accord to others similarly situated the same due process protection offered to petitioner is refuted by this regula- tion, apart from petitioner’s obvious lack of standing to raise the issue. E.g., Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) ; Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166 (1972). b. Since this Court as recently as Arnett v. Kennedy, U.S. , 94 S. Ct. 1633 (1974), has had occasion to discuss and approve statutory language applicable to the * Whether as a matter of due process a hearing is required when a teacher is convicted of a crime of moral turpitude, as here, is itself questionable. Purifoy v. State Board of Education, 30 Cal. App. 3d 187, 196 Cal. Rptr. 201 (Ct. of App., First District 1973). Here the State does provide a hearing, as was offered to petitioner. ** See also Matter of Quinn, 67 N.Y. St. Dept. Rep. 7 (1946); Matter of Hoffman, 39 N.Y. St. Dept. Rep. 346 (1930) ; Matter of Pryor, 38 N.Y. St. Dept. Rep. 115 (1928). ee —- 7 removal of government employees, similar to the language of the statute challenged herein (‘‘upon cause shown to his [the Commissioner’s] satisfaction’’), no occasion for fur- ther review is presented in this case. Apart from Arnett, as the courts below noted, this Court has on numerous occa- sions upheld statutory language similar to that of Section 305(7). Beilan v. Board of Education, 357 U.S. 399 (1958) (discharge of a teacher for ‘‘incompetency’’); Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938) (termination of a teacher for ‘‘incompetency, insubordination, neglect of duty, immorality . . . or other good or just cause’’); Lehman v. Board of Accountancy, 263 U.S. 394 (1923) (cancellation of an accountant’s certificate ‘‘for any un- professional conduct of the holder of such certificate, or for other sufficient cause’’). Cf. Perry v. Sinderman, 408 U.S. 593 (1972); Board of Regents v. Roth, 408 U.S. 564 (1972). Petitioner’s reliance on Parker v. Levy, —— U.S. ' 42 U.S.L.W. 4979 (June 18, 1974) is misplaced. There this Court held that provisions proscribing “conduct unbe- coming to an officer” and “all disorders and neglect to the prejudice of good order and discipline in the armed forces” were not vague when interpreted in light of custom and usage. 42 U.S.L.W. at 4982-84. This decision directly sup- ports the state respondents’ contention that custom and usage, as well as common sense, compel the conclusion that a teacher is chargeable with the knowledge that a felony conviction may be “cause” for the annulment of his teach- ing certification. Since petitioner’s conduct fell within the “hard core” of prohibited conduct for teachers, he lacks standing to attack the statute as it might be applied to others. Parker, 42 U.S.L.W. at 4986; Civil Service Com- mission v. Letter Carriers, 413 U.S. 548, 578-80 (1973); Broadrick v. Oklahoma, supra at 608. c. Similarly, the equal protection argument based on state statutes which spell out misconduct definitions and disciplinary procedures for other professions different Das, ub a Caen et PE Sr a Pe than those set forth for teachers is frivolous. Petitioner’s argument rests on the assumed equivalence between teach- ing and other state regulated professions. The assumption is clearly unwarranted. See Tigner v. Texas, 310 US. 141, 146-47 (1940). Education is “perhaps the most im- portant function of state and local government.” Brown v. Board of Education, 347 U.S. 483, 493 (1954). The Court of Appeals accordingly recognized that 6“ . . the teaching profession differs from these other professions in many respects, including the special vulnerability of the client population, the high duty of care owed by the state to that group, and the unique responsibility which the state has to provide an effective system of education.” (citing Art. 11 $1 of the New York State Constitution) (A. 48). See Beilan v. Board of Education, supra at 405; Adler v. Board of Education, 342 U.S. 485, 493 (1952) ; In re Gross- man, 127 N.J. Super. 13, 316 A. 2d 39, 48-49 (App. Div. 1974). The principle that a state may deal differently with dif- ferent groups so long as the distinctions drawn are ration- ally related to a legitimate state interest is well-established. E.g., San Antonio School District v. Rodriguez, 411 U.S. 1 (1973) ; Lindsay v. Normet, 405 U.S. 56, 70 (1972) ; Richard- son v. Belcher, 404 U.S. 78, 81-84 (1971) ; McGowan v. Mary- land, 366 U. S. 420, 425-27 (1961). 4. The power to suspend petitioner pending his re-em- ployment by the school district is supported by state statute. New York Education Law §$§ 305(7), 308. Indeed it would have been anomalous and perhaps condemnatory had the Commissioner failed to take temporary action to prevent the re-employment of a convicted felon as an ele- mentary school teacher, without so much as a hearing. The Court of Appeals rejected petitioner’s claim that he was entitled to a full evidentiary hearing before he could be 9 suspended (A. 42-45). This is so* apart from this Court’s decision in Arnett, supra, upholding termination with an opportunity for a subsequent hearing.** As the various opinions in Arnett indicate, the purpose of preliminary due process is the establishment of probable cause for the charges, the intention of which is the avoid- ance of mistakes in fact. See also Morrissey v. Brewer, 408 U.S. 471, 490 (1973). No such risk of error was attend- ant in petitioner’s situation. The uggontested fact of peti- tioner’s felony conviction was in and of itself probable cause for a charge that his fitness to teach was in question. Since petitioner was offered a reasonably immediate hear- ing based on unquestionable probable cause, there is no basis for certiorari review of his claim. CONCLUSION The petition for a writ of certiorari should be denied. Dated: New York, New York, August 20, 1974. Respectfully submitted, Louis J. LEFKOwITz Attorney General of the State of New York Attorney for Respondents Board of Regents ¢ Commissioner of Education Samvuet A. HirsHow1tTz : First Assistant Attorney General Marcery Evans REIFLER Deputy Assistant Attorney General Of Counsel \ \ \ \ *E.g., Weiss v. O’Hara, —— F.Supp. ——, 73 Civ. 264 (S.D. N.Y.) (three-judge court) (May 18, 1973), upholding the suspen- sion procedures of Section 75 of the New York Civil Service Law. **In Arnett a government employee was removed from his job. In the instant case petitioner was temporarily suspended from re-employment. \ “t St eS ee ay --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2060%3A3. Public record. Not legal advice.