Appeal from an order of the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, granting defendants' motions to dismiss discharged teacher's civil rights action and denying plaintiff's motion for a temporary restraining order and preliminary injunction.
Kaufman, Chief Judge, Smith and Timbers, Circuit Judges.
Francis C. Plano appeals from an order of the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, granting appellees' motions to dismiss and denying appellant's motion for a temporary restraining order and preliminary injunction. Appellant, a probationary teacher in the Westmoreland Central School System, Westmoreland, New York, instituted an action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) alleging that he was discharged from his position during the 1973-74 school term for activity protected by the First Amendment and in a manner that deprived him of his right to procedural due process under the Fourteenth Amendment. He sought reinstatement, back pay and damages, and moved for a temporary restraining order and preliminary injunction. Appellees, the Supervising Principal of the Westmoreland Central School District, the District Superintendent of Schools of Oneida 1 -- Madison-Herkimer Counties, the clerk and members of the Board of Education of the Westmoreland Central School District (all of whom were sued individually and in their official capacities) and the Board of Education of the Westmoreland Central School District moved to dismiss the complaint for failure to state a claim upon which relief could be granted and for failure to exhaust state administrative remedies. It was uncontested that appellant had failed to appeal the Board's order of dismissal to the New York State Commissioner of Education despite the fact that he had a right to do so pursuant to N.Y. EDUCATION LAW § 310 (McKinney 1969). Rather than going to the Commissioner, he went to Judge Foley. Relying on our decisions in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 27 L. Ed. 2d 75, 91 S. Ct. 82 (1970), and Blanton v. State University of New York, 489 F.2d 377 (2d Cir. 1973), requiring exhaustion of state administrative remedies in civil rights actions, Judge Foley sent him to the Commissioner, but he came here instead. We hold that the administrative remedy in this case was inadequate, and we therefore reverse and remand for further proceedings.
Appellant would have us abandon the exhaustion requirement of Eisen and Blanton. It is undeniably true that statements in various Supreme Court opinions appear to cast some doubt on that requirement.*fn1 We dealt with most of those opinions in Eisen, 421 F.2d at 567-69, and in Blanton, 489 F.2d at 384, and there is no need to repeat those discussions here. Subsequent to Blanton, the Supreme Court decided Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974), holding that the doctrines of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) and Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971) do not preclude an action in federal court seeking a declaratory judgment that a state criminal statute is unconstitutional in those cases of actual controversy where no state criminal proceeding has yet been initiated. In the course of its opinion, the Court observed:
When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) -- as they are here -- we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights.
415 U.S. at 472-73 (emphasis added). This language, standing alone, concededly appears contrary to Eisen and Blanton. There are several factors, however, which we must admit argue against the claim that Eisen and Blanton have definitely been overruled. First, the statement from Steffel is dictum; the holding of that case involved state judicial proceedings, not state administrative remedies. See, Blanton, 489 F.2d at 384 & n. 9 (distinguishing Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971) and Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973)). Second, there is ample breathing room under our holdings for allowing civil rights actions to proceed without requiring "a wooden application of the exhaustion doctrine." Eisen, 421 F.2d at 569. Thus, we have not required exhaustion of state administrative remedies where their pursuit would be futile*fn2 or inadequate.*fn3 Third, we recognize that there are benefits to be derived from a sensible application of the exhaustion doctrine.*fn4 In light of these factors, this Circuit's exhaustion rule should be subjected to re-examination only in a case requiring that issue to be reached. We have concluded that, under the facts of this case, the administrative remedy was inadequate. There is thus no need to decide whether Eisen and Blanton retain validity, and we decline appellant's invitation to do so.
Appellant's complaint alleged that he had been discharged by appellees because of a homework assignment given to his eleventh and twelfth grade English students on the subject of teen-age attitudes toward premarital sex. It was also alleged that appellees took into consideration a rumor regarding his moral character, thereby damaging his reputation, and that he was dismissed without notice or hearing. Appellant claimed that he was thus deprived of his right to freedom of speech, and deprived of property without procedural due process of law. Appellees maintained that appellant was discharged because he was demanding and uncooperative and showed poor judgment. They maintained further that, because of his probationary status, he had no property rights of which he could have been deprived.
As the district court repeatedly emphasized, the case in its present posture presents a dispute which is largely factual. Yet nowhere in the administrative process which the district court required appellant to exhaust was there a procedure designed to resolve factual issues. The Board did not conduct a fact-finding hearing, and the regulations governing appeals to the Commissioner, 8 N.Y. CODE OF RULES AND REGULATIONS § 276.2, make oral argument discretionary and expressly prohibit the taking of testimony:
(b) The commissioner may, in his sole discretion, determine, whether oral argument shall be had.
(d) All evidentiary material shall be presented by affidavit or by exhibits. No testimony is taken and no transcript of oral argument will be made.
Where a dispute is largely factual, we fail to see how an administrative remedy that expressly forbids the examination and cross-examination of witnesses can be considered adequate for purposes of the exhaustion rule.*fn5 We find ourselves in substantial agreement with the observation of Chief Judge Caleb Wright ...