# Reply Brief — Cusumano v. Ratchford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1099%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1975 - **Citation:** 423 U.S. 829 ## Text > ee TABLE OF CONTENTS PE 5 so ein A anon 6.0 nQan 655 eek eawiseetes l I. The Circuit Court relied totally on particular provi- sions of the tenure regulations which are inapplicable OE Be 5k 6 ck cheered sdakewcvpasss ] Il. The Court of Appeals erred in distinguishing the case of Perry v. Sindermann, 408 U.S. 593 (1972), and in not bringing its decision in harmony with deci- es ee bs ads sacs eas 3 I rt SO ike eee cht oh oe k etek an 5 ns y's ia kk eae eK 6 TABLE OF AUTHORITIES CITED Cases Board of Regents of State Colleges v. Roth, 408 U.S. 564, Fe FF F&F HB | ee & , Baer rrr 4 Johnson v. Fraley, 470 F.2d 179, 182 (4th Cir. 1972) .. 4 Moore v. Knowles, 482 F.2d 1069 (Sth Cir. 1973) ...... 4 Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, I ee ta ig gf alle ak lala pe bee 3,4,5 Zimmerer v. Spencer, 485 F.2d 176, 177 (Sth Cir. 1973) 4 iN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1974 No. 74-1423 JOSEPH VICTOR CUSUMANO and SIDNEY M. HARMON, Petitioners, VS. DR. C. BRICE RATCHFORD, et al., Respondents. PETITIONERS’ REPLY BRIEF In Support of Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit ARGUMENT I. The Circuit Court Relied Totally on Particular Provi- sions of the Tenure Regulations Which Are Inapplicable to Your Petitioners. The respondents, in their opposition brief (Pages 4 and 6 wherein Section 3B of the Tenure Regulations is quoted), have shown the reliance of the Circuit Court on provisions of the Tenure Regulations, A-34 through A-57 of the Petition for Writ (hereinafter “the Regulations”) which apply exclusively to probationary teachers (teachers on term appointments be- fore the expiration of their maximum probationary periods). The particular provisions which the Circuit Court relied on clearly do not apply to teachers, such as your petitioners, who have completed their maximum probationary periods and were thereafter reappointed. This inapplicability is demonstrated by the Regulations which allow term appointments only before the expiration of the maximum probationary period, and rec- ognize only tenured appointments after the end of such pro- bationary period (Sections 2D, 2A and 3A, pages 4, A-36 and A-37 of the Petition for Writ). In the instant case, there is no dispute that your petitioners j began their final probationary year without notification by : the respondents that their employment would be terminated. Because there was no such notification at that time, the Regu- lations mandated that your petitioners be reappointed after they completed their maximum probationary periods (Section 4E, page A-41, Petition for Writ). As shown above, the Reg- ulations require that such reappointments after the maximum _ _ probationary period must be tenured. Respondents’ adoption in their Regulations of the “Statement of Principles” and their past practice (Pages 6, 9 and 11 of the Petition for Writ) also require that tenured reappointments follow the completion of the maximum probationary period. The Regulations clearly classify the terminal one year term appointments, which the respondents issued to the petitioners, as term appointments (Sections 2A, 2B and 2C, pages 4 and A-36 of the Petition for Writ). Also, it is undisputed that” ~~ es these terminal term appointments began afte: tue petitioners completed their maximum probationary periods. Therefore, | such a term reappointment expresses a termination of em- ployment and not merely a one-year reappointment which was Se eae ee ene ee ee er 3 | _ ing Its Decision in Harmony With Decisions From Other Cir- impermissible under Regulations recognizing only tenured re- appointments following the maximum probationary period. Neither respondents in their opposition brief, nor the Cir- cuit Court in its opinion, have noted those provisions of the Regulations which prohibit the recommendation of a term appointment during the final probationary year (Sections 4A and 4C, pages A-38 and A-39 of the Petition for Writ). Thus the assertion, that “during any year of a term appointee’s pro- bationary period, he [probationary teacher] may be subject to what amounts to a notification of discharge . . . [with- out due process]” found at page A-18 of the Petition for Writ and at 507 F.2d 980, 984 (1974), selectively ignores the pertinent prohibitions stated above. By denying the petition- ers their day in court, in which they can present evidence showing that the policy and practice of the University required a tenure appointment after the maximum probationary pe- riod, the decision of the Circuit Court gives petitioners no opportunity to prove their “property interest” as expressed in Sindermann, infra. The respondents in their opposition brief at page 6 also cite Section 12 of the Regulations. This section (A-48 through A-51 of the Petition for Writ) deals only with members of the academic staff at the time of the adoption of the Regula- tions on March 10, 1950. This section is inapplicable to your petitioners because they were initially appointed many years after such adoption. II. The Court of Appeals Erred in Distinguishing the Case of Perry v. Sindermann, 408 U.S. 593 (1972), and in Not Bring- —_. cults. Respondents have posited in their brief at page 5 that peti-' tioners have cited cases which have been superseded by decisions oe, WN of the Supreme Court. In answer to this assertion, petitioners state that those cases which petitioners cited in their brief have not been superseded by Supreme Court decisions but have, in effect, reinforced the decisions of the Supreme Court, as evi- denced by restatements of positions of various circuits, follow- ing the decisions in Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 and Board of Regents of State Col- leges v. Roth, 408 U.S. 564, 33 L. Ed.2d 548, 92 S. Ct. 2701. For example, in the case of Moore v. Knowles, 482 F.2d 1069 (Sth Cir. 1973), the Circuit Court stated, in withdrawing its judgment against plaintiff's claim and in remanding it; “In his petition for rehearing, Moore [the teacher] makes two major points. The first is that he is entitled to a re- mand to afford him the opportunity to offer proof tending to show that while he lacked contractual or formal tenure ; he nevertheless possessed a ‘property’ interest in his con- tinued employment as defined by the new Sindermann principles. Sindermann was decided at the trial level on : summary judgment. The Supreme Court remanded the q case to afford plaintiff an opportunity to prove his claim | of constructive tenure. . . . We agree with plaintiff [the q teacher] that he is entitled to his day in court under the new : standards laid down by Sindermann. We . . . remand the case for further consideration by it [District Court] under the new standards of Sindermann.” 482 F.?* at 1072. The Fourth and Fifth Circuits of the Court of Appeals, in cases decided after Roth, supra and Sindermann, supra, both ‘ followed the argument of petitioners in asserting the right of nontenured teachers to claim procedural due process rights against employers under the decision of Sindermann, supra. _ Johnson v. Fraley, 470 F.2d 179, 182 (4th Cir. 1972) and Zimmerer v. Spencer, 485 F.2d 176, 177 (Sth Cir. 1973). the respondents also quoted from the opinion of the Eighth Circuit Court to the effect that “The entire thrust of the tenure —. nana ——.. —.. eee ree 6 ROPER OS AE abies | ay oe en Regulations is to avoid the de facto tenure hypothesized in Sindermann, supra.” (Page 6 of respondents’ brief). The re- spondents in adopting the language of the Eighth Circuit Court imply that decades of practice and procedures previously fol- lowed can be swept under the boards, to the detriment of pe- titioners, and without recourse. In the opinion of the Eighth Cir- cuit Court, it is suggested that the refusal to give a tenure appointment to petitioners may have been administrative neglect or oversight as to notice of termination (A-22 and A-23 of the Petition for Writ and 507 F.2d 980, 986 (8th Cir. 1974)). Pe- titioners have from the time of the filing of this suit, offered to prove that the previous practice has been constant at the Uni- versity in that no notice was given unless a teacher was to be terminated, and that a continuous contract automatically fol- lowed the maximum probationary period. CONCLUSION For these reasons and those already presented in the Petition for Certiorari, petitioners respectfully submit that the Court should grant certiorari in this case. Respectfully submitted SIDNEY M. HARMON Vida, Missouri 65581 Petitioner in Pro Se JOSEPH VICTOR CUSUMANO Route 1, Box 43 F Portage Des Sioux, Missouri 63373 _ Petitioner in Pro Se ain extad REA | | Certificate of Service Three true and correct copies of the foregoing Petition for Writ of Certiorari were mailed this 28th day of August, 1975, postage prepaid to Mr. Jackson A. Wright, 227 University Hall, Columbia, Missouri 65201. Sidney M. Harmon Priieniecie 2’: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1099%3A4. Public record. Not legal advice.