Reply Brief — Board of Education for Warren Community Unit School District No. 205 v. Baird

8

a “right to remain in office” by authorizing suspensions, even

without pay, in limited circumstances, with no process at all.

None of the cases cited by Respondent as being consistent

with the decision below (Opp. at 18-21) addresses the

question whether state court actions constitute adequate post-

termination process. Nor do any require a post-termination

remedy that includes reinstatement, as the Seventh Circuit

does, nor do they find that state court proceedings are not

sufficiently prompt. Rather, these cases address a myriad of

other procedural due process concerns: student expulsions

(e.g., Camlin v. Beecher Community School School, 339

Ill.App.3d 1013, 791 N.E.2d 127 (3 Dist. 2003));

administrative review boards (see Case v. Shelby County Civil

Service Merit Board, 98 S.W.3d 167 (Tenn. Ct. App. 2002));

the proper notice to be given in a pre-termination proceeding

(Calhoun‘ v. Gaines, 982 F.2d 1470 (10" Cir. 1992)); the

standards for judging pre-termination hearings where no post-

terniination process is available (Copelin-Brown v. New

Mexico State Personnel Office, 399 F.3d 1248 (10" Cir.

2005); McClure v. Independent School District No. 16, 228

F.3d 1205 (10" Cir. 2000)); and the inadequacy of a meeting

with the agency head as post-termination process (Garraghty

v. Commonwealth of Virginia, 52 F.3d 1274 (4" Cir. 1995)).

Thus, while Respondent argues that the appellate court’s

decision is “consistent with the overwhelming weight of

federal and state authority interpreting Loudermill,” (Opp. at

18), the cases he cites do not support that claim. To the

contrary, the Seventh Circuit’s decision conflicts with the

well-settled principles established in Loudermill and twenty

years of appellate decisions applying those principles.

* Miscited in Respondent’s Opposition as California [sic] v. Gaines.

(Opp. at 19).

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D. The Denial of Qualified Immunity Violates This

Court’s Requirement of a “Clearly Established”

Constitutional Violation.

Respondent fails to address the argument regarding

qualified immunity in any meaningful way, neglecting to cite

any of this Court’s most significant qualified immunity

decisions, from Harlow v. Fitzgerald, 457 U.S. 800 (1982),

and Anderson v. Creighton, 483 U.S. 635 (1987), to such

recent cases as Saucier v. Katz, 533 U.S. 194 (2001), and

Brousseau v. Haugen, 125 S.Ct. 596 (2004). More important

than his failure to cite these cases, Respondent never

acknowledges their requirements. Indeed, like the opinion

below, Respondent argues that, although Loudermill and its

progeny required that some post-termination process be

provided, and no case had ever held that the post-termination

process available — a full trial in state court - failed to meet

the requirements of Loudermill, these defendants nonetheless

should have been able to foretell the Seventh Circuit’s

decision. This directly contravenes Saucier.

Both Respondent and the appellate court have made it

plain that they dislike these school board members, and

believe that their behavior was, as Respondent repeated

numerous times, “petty and maladroit.” That, however, is

not now, and never has been the standard for a denial of

qualified immunity for local. public officials. The court

below, as did the District Court before it, found that these

defendants had not acted with bias, and made no finding that

they were acting in any way with subjective bad faith,

although the Respondent seems to argue that point in his

brief. In any event, this Court long ago rejected the

subjective bad faith standard that Respondent now appears to

advocate as his only explanation for the denial of qualified

immunity. Harlow, 457 U.S. at 815-818. Simply disliking

the defendants, and disagreeing with their decision to

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terminate a superintendent they found to be wholly unsuited

for his position, is no basis for denying the immunity to which

they are entitled. Accordingly, in addition to the grounds for

hearing this case on its merits, this Court should grant

certiorari to resolve the confusion caused by the opinion

below regarding the standards for denying qualified immunity

to local public officials.

CONCLUSION

In urging this Court to deny the petition for certiorari,

Respondent argues that doing so will “help make sure that

employment disputes will be resolved in state court where

they belong.” (Opp. at 24). Petitioners share the sentiment

that these cases belong in state court. Only by granting the

petition and reversing the Seventh Circuit, however, will this

Court ensure that result. For the reasons stated above, and

in the petition for certiorari, the Board of Education and its

individual board members respectfully request that this Court

grant the petition for certiorari.

Respectfully submitted,

Nancy Fredman Krent

Counsel of Record

Robert E. Swain

Hodges, Loizzi, Eisenhammer,

Rodick & Kohn

3030 Salt Creek Lane, Suite 202

Arlington Heights, Illinois 60005

Phone: (847) 670-9000

Stephen R. Miller

Laura L. Scarry

Myers, Miller and Krauskopf

Two North LaSalle Street, Suite 1200

Chicago, Illinois 60602

Phone: (312) 345-7250

Counsel for Petitioners