Appeal from denial of application for convening of three-judge court and dismissal of action attacking proceedings for revocation of teacher's certificate, in the United States District Court for the Northern District of New York, James T. Foley, Chief Judge.
Kaufman, Chief Judge, Smith and Feinberg, Circuit Judges.
This is an appeal from a decision of the United States District Court, Northern District of New York, James T. Foley, Chief Judge, entered on April 26, 1973, reported at 357 F. Supp. 222, refusing to convene a three-judge court to consider the constitutionality of section 305(7) of the New York Education Law and otherwise dismissing appellant Pordum's complaint. We affirm.
Frederick F. Pordum is a tenured teacher in the Lackawanna, New York school system. He holds a New York State Teaching Certificate issued by the Commissioner of Education of New York State. In 1967, Pordum requested and received a two-year leave of absence from the school district, and this leave was subsequently extended for an additional three years, to expire on January 1, 1973. In June 1971, while Pordum was a member of the Erie County Legislature, he was convicted in the United States District Court, Western District of New York, of the crime of conspiracy to promote and facilitate the promotion of bribery of public officials, a felony under 18 U.S.C. § 371. He was sentenced to serve three years in prison.
On December 22, 1972, Pordum was released on parole from prison. He wrote to the Lackawanna school system on December 29, stating that his leave of absence was about to expire and that he was ready to resume teaching. By letter dated January 24, 1973, the school district informed appellant that it had assigned him to Wilson Elementary School, effective February 1, 1973, the beginning of the new term.*fn1
Also on January 24, the Commissioner of Education wrote to appellant, ordering him to show cause on February 15, 1973, at a hearing why his teaching certificate should not be revoked. The Commissioner stated in the letter that he was acting pursuant to section 305(7), which provides:
He [the Commissioner] may annul upon cause shown to his satisfaction 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 reconsider and reverse his action in any such matter.
In a separate letter dated January 24, the Commissioner ordered the Lackawanna school district not to re-employ Pordum pending the outcome of the February 15 hearing. On January 30, the school district informed appellant that he would be notified by the district or by the Commissioner if and when he was to report to work.
Appellant has refused to comply with the hearing procedure. At his request, the hearing was postponed until March 30, 1973. On March 8, he commenced this action in the United States District Court, naming the Commissioner and the school district as defendants and challenging the constitutionality of section 305(7). The Commissioner remains prepared to go forward with the hearing. The school district, meanwhile, asserts that it is ready and willing to employ Pordum, without a hearing. Although a defendant in this lawsuit, the district joined in appellant's motion below for immediate reinstatement. The district did not appear at oral argument.
Appellant contends that section 305(7) is unconstitutional in that it does not afford due process of law, is fatally vague, violates the equal protection clause, and is overbroad. Judge Foley concluded that these claims were either foreclosed by previous decisions of the Supreme Court or obviously lacking in merit and that therefore a three-judge court need not be convened. Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973). We agree with this conclusion.
In the Commissioner's letter of January 24 to appellant, appellant was notified that a hearing would be held prior to the Commissioner's ultimate disposition of the teaching certificate, that a hearing officer would preside, that appellant would be allowed to present evidence, cross-examine witnesses and obtain a copy of the transcript of the hearing. At oral argument, the Commissioner stated that judicial review of the Commissioner's determination was available pursuant to Article 78 of the New York Civil Practice Law and Rules. As Judge Foley found, these rights were granted "with an attitude of fairness to insure compliance with due process requirements." 357 F. Supp. at 225. Appellant does not contest these procedures. He challenges only the failure to afford him a hearing prior to his suspension.
The Commissioner characterizes this claim as an argument that Pordum must be reinstated as a teacher pending a hearing. Appellant emphasizes the fact that he has been ordered to report as a teacher by the school district and argues that the job cannot be taken away from him before a hearing is held. Semantics aside, Pordum's position is this: He must be allowed to teach in Wilson Elementary School until a hearing is held and a decision based on that hearing, concerning his fitness to teach has been made, a matter of three or four weeks. Appellant is not complaining ...