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February 19, 1974;

Donald M. KINSELLA, Plaintiff,
BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 7 OF the TOWNS OF AMHERST AND TONAWANDA, ERIE COUNTY and Ewald B. Nyquist, Commissioner of Education of the State of New York, Defendants

Oakes, Circuit Judge, John O. Henderson, Chief District Judge, and Curtin, District Judge.

The opinion of the court was delivered by: HENDERSON

JOHN O. HENDERSON, Chief District Judge.

The plaintiff in this action is a tenured school teacher who has been employed by the defendant school board as a physical education and health education instructor for the past fourteen years. On March 1, 1973 the principal of the Senior High School of Sweet Home Central School District, where plaintiff is employed, filed charges against plaintiff with the defendant school board pursuant to provisions of section 3020-a subd. 1 of the Education Law of the State of New York. Those charges allege that on three separate occasions the plaintiff administered excessive corporal punishment to high school students. On March 5, 1973 the school board, acting pursuant to the same statute, made a finding that probable cause existed to support the charges. Plaintiff was notified in writing of the charges and of his right to a hearing before a three-member panel. Plaintiff requested that such a hearing be held, but prior thereto he filed this action, praying for a judgment declaring sections 3012 and 3020-a of the Education Law unconstitutional. Since plaintiff further seeks a permanent injunction against the operation of the above statutes, a three-judge panel was convened to hear argument.

 Plaintiff's challenge to the constitutionality of section 3012 is based upon a claim of vagueness and overbreadth. With respect to section 3020-a plaintiff contends that the procedures set forth therein for the removal of a tenured teacher constitute a deprivation of property without due process, a violation of the equal protection clause, and potential infringement of a teacher's First Amendment rights. The court finds the equal protection and First Amendment claims to be improperly raised in this litigation. *fn1" The plaintiff's remaining contentions will be discussed in turn, together with the question of this court's abstention, which was raised initially at oral argument.


 In a proper case for abstention, the uncertainty in state law must be such that construction of the statute by a state court might obviate the need for decision of a federal constitutional question. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941); Zwickler v. Koota, 389 U.S. 241, 248-249, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967).

 The Supreme Court has repeatedly emphasized that abstention should not be ordered merely to give the state courts the first opportunity to decide constitutional issues. It has also cautioned that abstention frequently leads to piecemeal adjudication in many courts, which will cause an undue delay of the ultimate decision on the merits. Baggett v. Bullitt, 377 U.S. 360, 378-379, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964).

 With these guidelines in mind, we conclude that the instant case is not an appropriate one for abstention. The facts of this case do not raise questions of ambiguity in the state statute which the state courts might resolve in a way that would end the constitutional controversy. Wisconsin v. Constantineau, 400 U.S. 433, at 439, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). Nor is this a case where principles of comity would require abstention in the face of a pending state court proceeding. Lake Carriers Association v. MacMullan, 406 U.S. 498 at 509, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972).


 Section 3012 of the Education Law provides:


"2. . . . Such persons, [teachers appointed to tenure] and all others employed in the teaching service of the schools of such union free school district, who have served the probationary period as provided in this section, shall hold their respective positions during good behavior and efficient and competent service, and shall not be removed except for any of the following causes, after a hearing, as provided by section three thousand twenty-a of such law: (a) insubordination, immoral character or conduct unbecoming a teacher; (b) inefficiency, incompetency, physical or mental disability, or neglect of duty; (c) failure to maintain certification as required by this chapter and by the regulations of the commissioner of education. . . ."

 Plaintiff contends that the italicized language is both unconstitutionally vague and overbroad in that it fails to set forth guidelines for its application, either in other statutes or in the rules or regulations of either defendant, citing Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926). We find this contention without merit. Whatever may be the outer limits of the statutory language in question, that uncertainty has little relevance where the conduct alleged falls squarely within the hard core of conduct the statute was designed to proscribe. Broadrick v. State of Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). The charges filed against the plaintiff in this case constitute conduct which, if proven, would fall squarely within the statutory language set forth above.


 Section 3020-a of the Education Law provides the administrative machinery for processing charges against a tenured teacher. *fn2" Such charges must be filed in writing with the clerk of the employing school district. Within five days of the date the school board is notified of the charges, the board, meeting in executive session, determines by majority vote whether probable cause exists to support the charges. If a probable cause finding is made, a written statement of the charges is sent to the teacher. The teacher may then elect to have a hearing before a three-member panel selected from a list maintained by the Commissioner of Education, and presided over by a hearing officer selected by the commissioner. At such a hearing the rules of evidence do not apply, but the teacher may be represented by counsel, may testify in his own behalf, and may subpoena and cross-examine witnesses. A verbatim record of the hearing is kept, transcribed and furnished to the teacher without charge. Following the hearing, the panel forwards its report and the transcripts of the proceedings to the commissioner. The Commissioner of Education then forwards to the employing board a hearing report setting forth the findings and recommendations of the hearing panel, including any recommendation as to penalty. The statute states that within thirty days of receipt of the hearing report, the employing board "shall determine the case by a vote of a majority of all members of such board and fix a penalty or punishment, if any . . ."

 The plaintiff contends that the procedures set forth in section 3020-a constitute a denial of due process in that (1) a teacher is denied a meaningful hearing of his case because he is not permitted to present favorable evidence or to rebut adverse evidence before the body that has the power to decide the case, that is, the school board; (2) the same attorney who represents the school board at the time of the probable cause finding will act as "prosecuting attorney" before the hearing panel in his capacity as attorney for the school principal who brought the charges, and will continue to act as attorney for the school board and presumably render advice to that board, at the time the case is finally determined; (3) the same body that makes the finding that probable cause exists to support the charge filed against a teacher will ultimately make the final decision of guilt or non-guilt and will decide upon a penalty; (4) a teacher may be suspended from his duties prior to any hearing. *fn3"

 Any consideration of the procedures required by the due process clause, under a given set of circumstances, must begin with the question of whether the plaintiff may be deprived of "liberty" or "property" within the meaning of the due process clause as a result of those procedures. Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961).

 In two recent decisions, Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), the Supreme Court provided guidance as to which interests of government employees are constitutionally protected. Taken together, those cases establish that a tenured teacher has a property interest in continued employment in the absence of "sufficient cause" for dismissal. Perry v. Sindermann, supra at 601-603, 92 S. Ct. 2694.

 Since we are faced with a possible deprivation of a protected property interest, the ultimate question to be decided is whether the procedures mandated by section 3020-a comply with the requirements of due process. *fn4"

 The crux of the plaintiff's due process claim is a challenge to the procedures involved in the final determination of the employing board which follows the hearing panel stage of the proceedings. The plaintiff contends that while section 3020-a provides for a hearing that conforms to due process standards, the right to a hearing is illusory because nothing that occurs before the hearing panel need have any impact on the school board's final determination.

 Section 3020-a has been construed to mean that the findings and recommendations of the hearing panel are merely advisory and not in any way conclusive upon the employing board. Le Tarte v. Board of Education, 65 Misc.2d 147, 316 N.Y.S.2d 781 (1970). The statute does not require that the school Board's decision be based upon the record developed before the hearing panel. Indeed, there is no requirement that a transcript of the hearing panel proceedings even be sent to the school board, although it has been represented at oral argument that the school board may, if it so desires, order the transcript. While the school board does receive a hearing report which contains the findings and recommendations of the panel, that report does not contain even a summary of the evidence elicited at the hearing.

 Not only does the procedure outlined above fail to insure that the school board's decision will be based on evidence elicited at the hearing, it provides no safeguard against the school board's basing that decision on ex parte evidence. Furthermore, the problem is exacerbated by the fact that the school board is not required to render a written decision setting forth its reasoning and the factual basis for its decision. The situation is analogous to that faced by the Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) involving the termination of welfare benefits. The standards set forth in that decision are applicable here:


"[The] decisionmaker's conclusion . . . must rest solely on the legal rules and on evidence adduced at the hearing. To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on. . . ." Id. at 271, 90 S. Ct. at 1022.

 In support of the constitutionality of the statute, the defendants contend that section 3020-a, subd. 5 affords the teacher the opportunity to appeal to New York Supreme Court in a special proceeding brought under Article 78 of the New York Civil Practice Law and Rules. The defendants contend that this provision would require the state court to review the school board's decision in light of the facts elicited at the hearing before the hearing panel.

 This court finds that an appeal under Article 78 of the New York CPLR cannot correct the constitutional defects of section 3020-a. Since the school board is not required to set forth reasons in support of its decision, a review of the factual determination relied upon by the board becomes illusory. Simply stated, there will not be an adequate record for a state court to review. See, United States v. Merz, 376 U.S. 192, 84 S. Ct. 639, 11 L. Ed. 2d 629 (1964).

 The remaining contentions of the plaintiff need not detain us. The plaintiff sees a due process violation in the multiple roles played by both the school board itself and the board's attorney who also represents the school principal before the hearing panel. The affidavit of the school board attorney makes it clear that he never intended to counsel the school board as to its determination in the event this case proceeded to that point. Moreover, the Supreme Court has indicated the performing of multiple functions by individuals or groups in administrative processes is not per se a due process violation. Richardson v. Perales, 402 U.S. 389, 410, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). See also, Marcello v. Bonds, 349 U.S. 302, 75 S. Ct. 757, 99 L. Ed. 1107 (1965).

 For the foregoing reasons we declare that ยง 3020-a of the Education Law of the State of New York, absent administrative regulations requiring decision to be based upon evidence elicited before the hearing panel and the decision of the Board to set forth the reasons and factual basis therefor, is unconstitutional, and the defendants are enjoined from its enforcement until such time as appropriate administrative or legislative action is taken to remedy the defects in the procedures here involved.

 It is so ordered.

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