Amicus Curiae Brief — Tuxedo Union Free School District v. Cullen

‘ { Eupreme Court, U.S,

| ) FILED

No. 93-1906 JUN - 8 1994

GFFICE-OF THE CLERK

In The

Supreme Court of the United States

October Term, 1993

¢

THE TUXEDO UNION FREE SCHOOL DISTRICT, et al.,

Petitioners,

BRIAN CULLEN,

Respondent.

*

Lis fv

aa0 . ° ay . ."

On Petition For Writ Of Certi rat! REME pp,"

To The United States Court Of Appeals... °“YNT, ug

For The Second Circuit " D.C. o0n,-

543

+

BRIEF AMICUS CURIAE OF NEW YORK STATE

SCHOOL BOARDS ASSOCIATION, INC. IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

¢

Jay Worona

(Counsel of Record)

SHARI GREENLEAF

New York STATE SCHOOL BoARDS ASSOCIATION

119 Washington Avenue

Albany, New York 12210

(518) 465-3474

Louis GRUMET

Executive Director

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLET CH PUTER Mee 6 oo os bc cates esceesenis ii

INTEREST OF THE AMICUS .............----000-- 1

REASONS FOR GRANTING THE WRIT ........... 2

ep ee og ae Se)” oe). Se a aera 4

PY 8. aaa ear e aes rrr ie ore Sa eee ere ar 6

I. The lower court erred in its finding that the bad

faith exception to the Younger abstention doctrine

applied thereby determining that federal court

intervention is warranted when a previously dis-

ciplined employee maintains a constitutional

claim in the context of a pending administrative

disciplinary proceeding............--.+++++++5. 6

II. Public policy considerations compel federal

courts to afford great deference to states in

administering disciplinary proceedings against

eee n re rae 15

ee 8 | errr nee errr ere 18

TABLE OF AUTHORITIES

Page

Casrs:

Barry v. Barchi, 443 U.S. 5S (1979)... ccc cceccvssaces 16

Belmont Cent. School Dist. v. Gootnick, 49 N.Y.2d

(63 OLX 1006 ioc eee 8

Brown v. Board of Educ., 347 U.S. 205 (1972)......... 15

Burson v. Freeman, __ U.S. __, 112 S.Ct. 1846

ti) Peer OrPrrrErarre rrr ee es 13, 14

Appeal of Chaplin, 29 Educ. Dep’t Rep. 388 (1990) .... 15

Christ the King Regional High School v. Culvert, 815

F.2d 219 (2d Cir. 1987), cert. denied, 484 U.S. 830

(DOF) ovis vauss ivan eak 955 nee ange emisegeates 6

Cullen v. Fliegner, 18 F.3d 96 (2nd Cir. 1994)....... 7, 12

Gersten v. Rundle, 833 F. Supp. 906 (S.D.Fla. 1993) .... 10

Gibson v. Berryhill, 411 U.S. 564 (1973). ..........6.4.. 7

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260

CRW 655 6-60 404 004 00 40a eee 15

Jerry v. Board of Educ., Syracuse City School Dist., 35

ee Se ae | Ree er a Ana 9

Kelly v. Board of Educ., 435 F. Supp. 904 (W.D.N-Y.

ef a era arr are eT BE A a PE ees 8

Kugler v. Helfant, 421 U.S. 117 (1975)........... a

Middlesex County Ethics Committee v. Garden State

Bar Assn, 457 US. GoD CRP iv wes ccc weeksandus 6, 10

Milliken v. Bradley, 418 U.S. 717 (1974) .............. 15

Ohio Civil Rights Commission v. Dayton Christian

scapes, Gir Ui. Ge Clee <4 0h 6c eab eases 6

|

TABLE OF AUTHORITIES — Continued

Page

Perez v. Ledesma, 401 U.S. 82 (1971) .................. 7

Schuler v. City of Chambersburg, 641 F. Supp. 657

EE 1]

Suggs v. Brannon, 804 F.2d 274 (4th Cir. 1986) ....... 1]

Appeal of Tuxedo Union Free School Dist., 33 Educ.

Dep’t Rep. __ (Dec. No. 13171, May 5, 1994)...... 4

United Books, Inc. v. Cente, 739 F.2d 30 (1st Cir.

NCE 0S 8 605s 6's eGo wis 0.044 dc dw liegWaeewaees 11

Williams v. Red Bank Bd. of Educ., 662 F.2d 1008

es oie Case dob bc bbeeveeccedss 6, 10, 16

Younger v. Harris, 401 U.S. 37 (1971)........ .... passim

STATUTORY AUTHORITIES:

RG) Oo passim

ee es re 8

oe ee passim

REGULATORY AUTHORITIES:

ew le ag od wo Xu do hs ae ee os bce 8

No. 93-1906

+

In The

Supreme Court of the United States

October Term, 1993

®

THE TUXEDO UNION FREE SCHOOL DISTRICT, et al.,

Petitioners,

v.

BRIAN CULLEN,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

eo -

BRIEF AMICUS CURIAE OF NEW YORK STATE

SCHOOL BOARDS ASSOCIATION, INC. IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

*

INTEREST OF THE AMICUS

This brief is filed with consent of all parties. Letters

of consent are on file with the Clerk of this Court.

The New York State School Boards Association (here-

inafter “NYSSBA”) submits this amicus curiae brief in

support of Petitioners’ petition for Writ of Certiorari.

NYSSBA is a corporate instrumentality of the public

school districts of the State of New York, and represents

approximately seven hundred (700) or ninety-three (93)

percent of such public school districts who are members

of this Association. Pursuant to section 1618 of the Educa-

tion Law of the State of New York, NYSSBA has the

responsibility of devising practical ways and means of

attaining greater economy and efficiency in the adminis-

tration of public school district affairs and projects.

NYSSBA has, in recent years, appeared as an amicus

curiae in several state and federal judicial and administra-

tive proceedings involving both the New York State and

the nation’s public schools. Included among those

appearances have been: Lamb’s Chapel, ___ U.S. __, 113 S.

Ct. 2141 (1993); Cullen v. Fliegner, 18 F.3d 96 (2nd Cir.

1994); Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058

(6th Cir. 1987); Smith v. Bd. of School Commissioners of

Mobile County, 827 F.2d 684 (11th Cir. 1987); Winter v.

Rhinebeck Cent. School Dist., 79 N.Y.2d 1 (N.Y. 1992); and

Derle v. North Bellmore Union Free School Dist., 77 N.Y.2d

483 (N.Y. 1991). Many such actions involved issues simi-

lar to those of the instant case including, but not limited

to, statutory construction and constitutionality.

+

REASONS FOR GRANTING THE WRIT

Although amicus recognizes that this court is often

reluctant to review a case involving the interpretation of

a unique state law, the state laws involved in this case

concerning anti-electioneering and tenured teacher disci-

pline are similar to laws in other states. Thus, the deci-

sion of the court below sets a precedent that potentially

will impact a number of states other than New York. The

issue of the extent of the constitutional protection of

ne |

speech in the context of anti-electioneering statutes tran-

scends school district elections and thus, is relevant to the

administration of local and national elections in all states.

Additionally, the refusal of the lower court to abstain

from intervening in a pending state administrative pro-

ceeding to discipline a school employee intrudes on the

important state function of educating children. Since this

court has previously recognized the importance of educa-

tion as a state function, the decision below creates an

untenable situation for schools in New York and across

the nation. Particularly in light of the divergence in opin-

ion between the court below and the Court of Appeals for

the Third Circuit, states will be impaired in their ability

to properly administer and supervise public schools by

being precluded from appropriately managing their

staffs.

The Court below, in failing to apply the Younger

abstention doctrine permitted the respondent to circum-

vent New York State’s comprehensive Statutory scheme

for the discipline of tenured teachers by local school

boards. Intervention by federal courts, under the circum-

stances in this case, into the functioning of the tenured

teacher disciplinary scheme would seriously hinder

school boards in New York State and indeed in other

states in their attempts to fulfill their obligation to pro-

vide students with a teaching staff which is competent,

effective and cohesive.

STATEMENT OF FACTS

Amicus respectfully defers to the facts as described in

the Writ for Certiorari. However, amicus would like to

draw the Court’s attention to several facts of particular

significance to its arguments.

First, the petitioners commenced disciplinary charges

against respondent, a tenured teacher employed by peti-

tioner Tuxedo Union Free School District (“the District”)

on two occasions prior to the charges which were prefer-

red in the instant case.

On February 15, 1990, the District filed charges

against respondent alleging that respondent took stu-

dents on an unauthorized field trip. Following a hearing

before a statutorily convened administrative panel, the

respondent was found guilty and was fined $1,250.

On February 13, 1992, the District filed a second set

of charges against the respondent alleging that despite

prior warnings, he ignited an aerosol spray in the pres-

ence of elementary students during school hours. Follow-

ing a second administrative hearing, the respondent was

found guilty and was suspended without pay for four

months. Most recently, the Commissioner of Education

determined that this penalty was insufficient and

increased the penalty to a suspension without pay for one

year. Appeal of Board of Educ., Tuxedo Union Free School

Dist., 33 Educ. Dep’t Rep. __ (Dec. No. 13171, May 5,

1994) (Appendix H to the Petition for Writ of Certiorari).

In the present case, on May 6, 1992, respondent was

personally and repeatedly made aware by various offi-

cials of the District and by police officers of the Tuxedo

Police Department that New York Education Law §2031-a

prohibits electioneering activities by any person within

one hundred feet from the entrances of a building being

used as a polling place during the hours that a school

district election is being conducted. At this time, respon-

dent was not asked to cease and desist from this activity

but rather to engage in this activity beyond one hundred

feet from the polling place. Indeed, respondent did not

dispute the fact that at the time when he was electioneer-

ing, that he was within one hundred feet from the polling

place. Respondent failed to demonstrate that any other

person, in addition to himself, was engaged in elec-

tioneering within one hundred feet from the polling

place.

At a statutorily authorized teacher disciplinary hear-

ing, the respondent interposed, as a defense to the

charges, the claim that his constitutional free speech

rights were violated by the District’s enforcement of the

anti-electioneering statute. Following a denial of his con-

stitutional defense by the administrative hearing panel,

the lower federal district court found that the District had

initiated and maintained the present disciplinary pro-

ceeding in bad faith and that, therefore, the bad faith

exception to the federal Younger abstention doctrine

applied. As a result, the district court issued an injunction

against the further proceeding of the state administrative

disciplinary action. The court below affirmed this deter-

mination.

ARGUMENT

I. The lower court erred in its finding that the bad

faith exception to the Younger abstention doctrine

applied thereby determining that federal court inter-

vention is warranted when a previously disciplined

employee maintains a constitutional claim in the

context of a pending administrative disciplinary

proceeding.

In its landmark decision in Younger v. Harris, 401 U.S.

37 (1971), this Court held that federal courts must abstain

from intervening in pending state criminal proceedings

unless an injunction is necessary to prevent great and

immediate irreparable injury. The Younger doctrine has

been extended to apply to pending civil and administra-

tive proceedings in which the state has a substantial

interest. Ohio Civil Rights Commission v. Dayton Christian

Schools, 477 U.S. 619 (1986); Middlesex County Ethics Com-

mittee v. Garden State Bar Association, 457 U.S. 423 (1982);

Christ the King Regional High School v. Culvert, 815 F.2d 219

(2d Cir. 1987), cert. denied, 484 U.S. 830 (1987); Williams v.

Red Bank Bd. of Educ., 662 F.2d 1008 (3rd Cir. 1981).

The Younger doctrine is founded upon:

the notion of ‘comity,’ that is, a proper respect

for state functions, a recognition of the fact that

the entire country is made up of a Union of

separate state governments, and a continuance

of the belief that the National Government will

fare best if the States and their institutions are

left free to perform their separate functions in

their separate ways.

Younger, 401 U.S. at 44.

Notwithstanding the fact that “the normal thing to

do when federal courts are asked to enjoin pending pro-

ceedings in state courts is not to issue such injunctions,”

Younger, 401 U.S. at 45, this Court has recognized several

narrow exceptions to the Younger abstention doctrine.

Thus, federal courts need not abstain from intervening in

state proceedings when the state prosecution either:

applies a patently unconstitutional statute; when the pro-

ceeding is brought by state officials in bad faith or for

purposes of harassment; or when other extraordinary

circumstances exist in which irreparable harm can be

shown. Younger, 401 U.S. at 48-49; Kugler v. Helfant, 421

U.S. 117 (1975). See also, Gibson v. Berryhill, 411 U.S. 564

(1973); Perez v. Ledesma, 401 U.S. 82 (1971).

In the present case, the courts below found that the

bad faith exception to the Younger doctrine applied and

thus enjoined the District from proceeding forward in the

pending tenured teacher disciplinary action. The courts

below did not determine that the other two above noted

exceptions to the Younger doctrine applied.

The lower court’s decision to intervene was founded

on a determination that the District applied the state

statutory scheme for tenured teacher discipline in bad

faith against the respondent in that the respondent was

“someone with whom the School District ‘had a past

oP 8

history of personal conflict’ ” and therefore enforced the

electioneering prohibition “exclusively on the activities of

[the respondent].” Cullen v. Fliegner, 18 F.3d 96, 102 (2nd

Cir. 1994) (Appendix A to the Petition for Writ of Cer-

tiorari).

The court below apparently failed to appreciate that

federal intervention was unnecessary because the New

York State statutory scheme fully protects the due process

rights of teachers like the respondent because the disci-

plinary proceedings under the statutory scheme provide

a forum capable of adjudicating teachers’ constitutional

claims. Furthermore, the court’s determination that the

District acted in bad faith merely because the disciplinary

charges enforcing the anti-electioneering statute had been

preceded by prior disciplinary actions against the respon-

dent implies that federal intervention will always be nec-

essary to enjoin the application of the statutory scheme

when districts proceed against teachers on more than one

occasion.

Amicus respectfully submits that the Court below

improperly found that the bad faith exception to the

Younger abstention doctrine applied because the statutory

scheme and its application in the present case do not

evidence bad faith as articulated in previous decisions of

this Court. See, Younger, 401 U.S. at 48-49; Kugler, 421 U.S.

at 124.

The statutory scheme contained in New York’s Edu-

cation Law, and the implementing regulations adopted by

the New York State Commissioner of Education, provides

an administrative procedure for disciplining tenured

teachers administered by the New York State Education

Department which provides adequate due process protec-

tion of the rights of teachers charged with misconduct.

Kelly v. Board of Educ., 435 F. Supp. 904 (W.D.N.Y. 1977);

Belmont Cent. School Dist. v. Gootnick, 49 N.Y.2d 683 (N.Y.

1980); N.Y. Educ. Law §§3012, 3020-a; 8 N.Y.C.R.R. Part

82.

The statutory scheme adopted in New York provides

teachers with: notice of the charges filed against them; an

opportunity for a hearing before an independent three

member panel (one of whom is selected by the teacher);

the right to, but no obligation to, testify in his or her own

behalf; the right to subpoena witnesses and cross-exam-

ine witnesses called by the school district; and the right

to counsel. Educ. Law §3020-a(2), (3). All testimony at

3020-a disciplinary hearings must be taken under oath,

and stenographic transcripts of the proceedings are kept

and sent to the teacher at the expense of the Commis-

sioner of Education. Educ. Law §3020-a(3)(c).

Although a tenured teacher may be suspended pend-

ing the outcome of the disciplinary hearing, the teacher

must be paid his or her full salary during any such

suspension. Jerry v. Board of Educ., Syracuse City School

Dist., 35 N.Y.2d 534 (N.Y. 1974). The employing school

board must prove the charges of misconduct and the

district must implement the determinations of the 3020-a

hearing panel with respect to the teacher’s guilt or inno-

cence on the charges and the appropriate penalty

imposed upon the teacher. Tenured teachers in New York

enjoy the right to appeal an adverse decision of the 3020-

a hearing panel to either the Commissioner of Education

or to the local County Supreme Court. Educ. Law §3020-

a(5).

As set forth above, the comprehensive statutory

scheme adopted in New York ensures that the state

administrative proceedings to discipline tenured teachers

more than adequately provide a full and fair opportunity

for teachers to interpose claims of constitutional rights in

defense of 3020-a charges and authorizes hearing panels,

10

the Commissioner of Education and the New York State

courts to adjudicate such constitutional claims.

This Court has found in similar contexts that other

state administrative disciplinary proceedings like that in

New York State are entitled to deference by federal

courts. See, Middlesex, 457 U.S. 423. Likewise, the Court of

Appeals for the Third Circuit has ruled that a similar

tenured teacher discipline statutory scheme adopted by

New Jersey involved an important state interest of fulfill-

ing its commitment to provide public education and was

adequate for purposes of resolving constitutional claims

raised by teachers in the context of an administrative

disciplinary action. Williams, 662 F.2d 1008. Thus, the

Third Circuit ruled that the Younger abstention doctrine

precluded the lower federal court from enjoining the

pending teacher disciplinary action notwithstanding the

teacher’s claim of a violation of her First Amendment

right to free speech. Id.

In addition to whether the administrative proceeding

provides an opportunity to interpose constitutional

defenses, as noted above, the court below also found that

the District had acted in bad faith because it selectively

enforced the anti-electioneering statute exclusively

against the respondent. In the criminal context, selective

enforcement in the prosecution of criminal charges has

been sustained as evidence of bad faith warranting fed-

eral intervention only when the criminal defendant dem-

onstrates the criminal charges have not been commenced

against other similarly situated individuals while he has

been singled out for prosecution and the state’s prosecu-

tion has been invidious or in bad faith. Gersten v. Rundle,

833 F. Supp. 906 (S.D.Fla. 1993), quoting, University Club v.

1]

City of New York, 655 F. Supp. 1323, 1328 (S.D.N.Y. 1987);

Schuler v. City of Chambersburg, 641 F. Supp. 657 (M.D.Pa.

1986).

In this case, the respondent did not introduce evi-

dence that any other similarly situated individuals were

electioneering within 100 feet of the entrance to the poll-

ing place and thus, failed to demonstrate that he was

singled out for prosecution by the school district.

As noted above, the lower court was also concerned

with whether bad faith was evidenced by the ability

under the statutory scheme of the District to bring multi-

ple disciplinary actions against the respondent. With

respect to the filing of multipie charges, requests for

federal injunctions against pending, criminal prosecutions

have been denied when the criminal defendant claimed

bad faith merely on the basis of his being prosecuted on

more than one occasion in the absence of other indicia of

bad faith. Suggs v. Brannon, 804 F.2d 274 (4th Cir. 1986);

United Books, Inc. v. Conte, 739 F.2d 30 (1st Cir. 1984).

While it is certainly true that the statutory scheme

adopted in New York does not prohibit school districts

from filing more than one set of charges against a single

teacher over the course of time, the mere filing of disci-

plinary charges on multiple occasions arising out of dif-

ferent instances of improper conduct should not be seen

as evidencing arbitrary and discriminatory enforcement.

See, Point II, below.

In this case, it should be pointed out that both prior

3020-a disciplinary charges brought by the District were

substantiated by determinations of guilt by the 3020-a

hearing panels. Indeed, the Commissioner of Education

12

recently upheld the 3020-a hearing panel’s determination

of guilt on the second set of charges and further increased

tre penalty imposed by the panel of a four month suspen-

sion without pay to a one year suspension without pay.

This Court has found in the criminal context that a

mere allegation that a state prosecutor had become “per-

sonally involved” in a criminal defendant’s case is insuf-

ficient to demonstrate bad faith, Kugler, 421 U.S. at 126, n.

6, and amicus respectfully submits that a “past history of

personal conflict,” Cullen, 18 F.3d at 104, between an

employing school district and a tenured teacher is like-

wise insufficient by itself to demonstrate bad faith.

Indeed, the effect of the decision of the Court below

would be that the simple filing of multiple disciplinary

charges against a tenured teacher by a school district

would be construed as an arbitrary and discriminatory

manner of pursuing employment discipline by the dis-

trict. Such a holding will effectively preclude school dis-

tricts from carrying out their responsibilities to discipline

teachers and involve federal courts in a function which

this Court has previously held extreme deference should

be afforded them.

The court below accepted the assertions of the

respondent that the enforcement of New York Education

Law §2031-a, an anti-electioneering statute, violated his

constitutionally protected free speech rights.

Amicus respectfully asserts that federal intervention

was not warranted in the present case because the

respondent's free speech claims were specious. As set

forth in the Statement of Facts, the respondent was never

asked to cease and desist from engaging in his federally

13

protected free speech rights. Rather, he was simply asked

to move beyond the 100 foot anti-electioneering zone to

engage in his activities. As such, the restriction placed on

his speech was, at most, a permissible time, place and

manner restriction which did not violate his constitu-

tional rights.

Even if the respondent's first amendment rights had

somehow been implicated by the actions of the District,

he failed to demonstrate that the New York State statu-

tory scheme for disciplining tenured teachers is incapable

of fully and fairly adjudicating such constitutional claims

or that the process itself is constitutionally suspect.

Amicus respectfully submits that a plain reading of

_the contested anti-electioneering statute demonstrates

that the primary and paramount purpose of the statute is

to further the state’s compelling interest in ensuring the

integrity of the electoral process in school district elec-

tions. Based upon the very clear public policy upon

which this statute is based, its enforcement cannot be

seen as unconstitutionally infringing upon the free

speech rights of any individual since individuals may

indeed exercise their free speech rights in places outside

of the anti-electioneering zone.

Indeed, this Court in Burson v. Freeman, __ U.S. ___L

112 S.Ct. 1846 (1992), recently recognized as much when

it upheld the constitutionality of an almost identical anti-

electioneering provision from the State of Tennessee.

In Burson, the State of Tennessee had adopted a pro-

vision of law, similar to New York Education Law §2031-

a, which prohibited electioneering activities within one

hundred feet of a building being used as a polling place.

14

A candidate for public office challenged the Tennessee

Law asserting that it violated her right to free speech

under the First Amendment to the United States Consti-

tution. In rejecting this challenge, this Court found that

the state had a compelling interest in preserving the

integrity of the voting process by taking measures to

prevent voter intimidation and election fraud.

In upholding the Tennessee statute, this Court speci-

fically took notice of the first anti-electioneering law in

New York State, which was a precursor to Education Law

§2031-a(2). This Court specifically referred to a historical

commentary describing the purpose of the anti-elec-

tioneering law which stated that:

In earlier times [New York’s] polling places

were frequently, to quote the litany, ‘scenes of

battle, murder, and sudden death.’ This also has

come to an end, and until night-fall, when the

jubilation begins, [New York’s] election days are

now as peaceful as our Sabbaths.

The new legislation has also rendered

impossible the old methods of frank, hardy,

straightforward and shameless bribcry of voters

at the polls.

Burson, 112 S.Ct. at 1854.

The public purpose served by the enactment and

enforcement of Education Law §2031-a is to preserve the

integrity of the electoral process. The placement of

markers delineating the one hundred foot anti-elec-

tioneering zone required by §2031-a(1) is only a means of

providing the public with notice of the overall prohibi-

tion which is the primary purpose of the law. As the

Commissioner of Education has stated in construing

15

§2031-a, “every effort should be made . . . to ensure that

[electioneering] does not occur.” Appeal of Chaplin, 29

Educ. Dep’t Rep. 388, 390 (1990).

Amicus respectfully submits that a plain reading of

§2031-a in its entirety demonstrates that the placement of

the markers is not a condition precedent to the general

prohibition against electioneering because in adopting

§2031-a the Legislature set forth both requirements sepa-

rate from each other.

As a result of the respondent's clear knowledge that

he was within the anti-electioneering zone and the fact

that the posting of distance markers is not a condition

precedent to the enforcement of the statute, the court

below erred in determining that respondent's free speech

rights were violated.

II. Public policy considerations compel federal courts

to afford great deference to states in administering

disciplinary proceedings against tenured teachers.

Well-established precedents from both state and fed-

eral courts in the nation have established that local auton-

omy in the management of school district affairs is

essential to the operation of public schools. In this regard,

this Court has stated, “No single tradition in public edu-

cation is more deeply rooted than local control over the

operation of schools; local autonomy has long been

thought essential both to the maintenance of community

concern and support for public schools and to quality of

the educational process. .. . ” Milliken v. Bradley, 418 U.S.

717, 741 (1974). See also Brown v. Board of Educ., 347 US.

205, 213 (1972); Hazelwood School Dist. v. Kuhlmeier, 484

16

U.S. 260, 267 (1988). Thus, courts have found that

“[e]ssential to the performance of this critically important

function, moreover, is a professional and competent body

of teachers capable of meeting high standards of con-

duct.” Williams v. Red Bank Bd. of Educ., 662 F.2d 1008,

1017 (3rd Cir. 1981).

New York State, like a number of states in the nation,

has established a comprehensive statutory scheme which

provides that a teacher who fails to live up to the

required standards may be disciplined or even dis-

charged. See, Point I above. Clearly this is not a state

statutory scheme regarding employee discipline under

which federal constitutional claims raised by employees

are not capable of being fairly and fully adjudicated

within the context of such disciplinary actions which

would warrant federal intervention into the pendency of

such proceedings. See, Barry v. Barchi, 443 U.S. 55 (1979).

However, as is set forth more fully above in Point I, the

New York State statutory scheme provides tenured

teachers a more than adequate opportunity to fairly and

fully adjudicate their constitutional claims.

Amicus respectfully asserts that if the decision of the

Court below is permitted to stand, school districts within

the jurisdiction of the Second Circuit, and other jurisdic-

tions which adopt the same analysis, will be placed in the

position of being precluded from fulfilling their commit-

ment to provide students with a teaching staff which is

competent, effective and cohesive. The essential effect of

the decision below is that any tenured teacher who faces

disciplinary charges arising out of alleged acts of miscon-

duct would simply need to raise constitutional objections

as a defense in order to have a federal court enjoin the

17

proceeding and preclude the employing school district

from meeting its statutory obligation to assure an effec-

tive teaching staff.

Furthermore, as set forth above, the bringing of mul-

tiple charges on the part of employing school districts

against tenured teachers should not be construed as evi-

dencing bad faith but rather, should be construed as a

demonstration of the fact that such districts may be

attempting to properly maintain a teaching staff which is

subordinate to authority and managed properly. The

expansion of the bad faith exception to the Younger

abstention doctrine by the court below is inconsistent

with the jurisprudential standards which this Court has

established regarding the role of federal courts in ongo-

ing state proceedings.

18

CONCLUSION

In light of the grave implications which the decision

below has on the future ability of school districts to

properly manage their teaching staffs, amicus respectfully

urges this Court to grant certiorari in this case and to

return the appropriate level of federal deference to the

states and their school districts in pending state teacher

disciplinary proceedings.

Respectfully submitted,

Jay Worona

(Counsel of Record)

SHARI GREENLEAF

New York State ScHooLt BoarpDs ASSOCIATION

119 Washington Avenue

Albany, New York 12210

(518) 465-3474

Louis Gru 4ET

Executive Director

June 8, 1994