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ORSHAN v. ANKER

November 3, 1982

DR. H. ALLEN ORSHAN, Plaintiff,
v.
IRVING ANKER, JAMES BOFFMAN, FRANK J. MACCHIAROLA, BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 This is an action for declaratory and monetary relief brought by a former employee of the New York City Board of Education (the "Board"). Essentially, plaintiff's complaint alleges that defendants refuse to acknowledge his claim to tenure as a day high school principal, a right he contends is secured by New York's common-law doctrine of tenure by estoppel, and that this refusal is a product of defendants' conspiracy to deprive him of his civil rights.

 When it was initially commenced in February 1979, plaintiff asserted a variety of constitutional and statutory grounds for relief. In July 1979, however, defendants made a motion for summary judgment which this Court granted with respect to all but one of these legal theories. Orshan v. Anker, 489 F. Supp. 820 (E.D.N.Y. 1980). Specifically, plaintiff's § 1985 claim was dismissed for failure to allege a class-based discriminatory animus, id. at 823, his § 1986 action was rejected as frivolous, id. at 824, and his due process claim that he was deprived of a "liberty interest" was found to be legally insufficient, id. In addition, this Court held that plaintiff's First Amendment rights were not violated by his removal and that any procedural irregularities in the school board review of that dismissal did not raise a constitutional question. Id. at 822 n.1, 824 n.2. Only plaintiff's claim that he had acquired tenure by estoppel and thus had a "property interest" protected by the Due Process Clause raised a material question of fact.

 The case is now before the Court on plaintiff's motions for leave to amend his complaint to reassert the dismissed causes of action and for partial summary judgment on the amended complaint. Defendants oppose the amendment of the complaint and again move for summary judgment on the surviving cause of action relating to tenure.

 At the outset, it is clear that plaintiff's motion to amend the complaint, insofar as it attempts to resurrect claims previously dismissed, must be denied under the law of the case doctrine. This sound principle of judicial administration precludes the unwarranted reconsideration of legal decisions rendered in previous litigation between the same parties. Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934, 12 L. Ed. 2d 298, 84 S. Ct. 1338 (1964); Schupak v. Califano, 454 F. Supp. 105, 114 (E.D.N.Y. 1978). Simply put, the rule provides that when "a federal court enunciates a rule of law to be applied in the case at bar . . . it establishes the law, which other courts owing obedience to it must, and which it itself will, normally apply to the same issues in subsequent proceedings in that case." 1B Moore's Federal Practice para. 0.404[1] at 402-03 (2d ed. 1982). Although a court is not bound by its former decisions and may overturn them in the face of "compelling reasons," Dale v. Hahn, 486 F.2d 76, 81 (2d Cir. 1973), this discretion must be exercised sparingly, "so as not to undermine the salutary policy of finality of adjudication that is the basis of the law of the case." United States v. Fernandez, 506 F.2d 1200, 1204 (2d Cir. 1974).

 In this case, plaintiff claims that newly discovered evidence justifies reevaluation of this Court's previous ruling. However, new evidence will not resuscitate legally deficient allegations; additional facts could not then, nor can they now, forestall summary judgment on those portions of the complaint which were dismissed for failure to state a claim. Thus, despite plaintiff's newly discovered "conspiratorial acts," the § 1985 claim still "fails entirely to set forth any allegation of class-based discriminatory animus." Orshan v. Anker, 489 F. Supp. at 824.

 Similarly, plaintiff's claim under the First Amendment again fails to allege the necessary nexus between his right to free speech and his removal as principal of Julia Richman High School. His assumed right to First Amendment protection against community complaints regarding his rejection of the UFT drug program simply misconstrues case law that has been developed to protect the academic freedom of teachers from unconstitutionally motivated reprisals in order to ensure the free flow of ideas in our schools. Thus, unlike curricular decisions motivated by censorship, Board of Ed. v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), racial bias, Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980), or involving pedagogical indoctrination, see, e.g., Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 512, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969); Keyishian v. Board of Regents, 385 U.S. 589, 603, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967), no First Amendment right is infringed when a probationary principal is removed by his superiors for making a discretionary, but purely administrative, decision with which portions of the community strongly disagree. Cf. Mercer v. Michigan State Bd. of Ed., 379 F. Supp. 580 (E.D. Mich.), aff'd per curiam, 419 U.S. 1081, 42 L. Ed. 2d 678, 95 S. Ct. 673 (1974) (State has ultimate power over curricular and administrative decisions absent an unconstitutional motivation).

 Gonzalez v. Shanker, 399 F. Supp. 858 (S.D.N.Y. 1976), aff'd on other grounds, 533 F.2d 832 (2d Cir. 1976), the sole legal authority cited by plaintiff, is not to the contrary. In Gonzalez, the plaintiff alleged that during a vitriolic school board election, defendants threatened him with reprisals unless he campaigned for a particular candidate and repudiated his support for another. Thus, plaintiff clearly alleged that defendants were motivated by a desire to punish him for exercising his First Amendment right to publicly support or not support a political candidate. No such allegation has been made in this case.

 Plaintiff also attempts to renew his claim that he was deprived of a liberty interest in "his good name and reputation" by alleging for the first time that the Board actually publicized defendant Boffman's unsatisfactory rating of plaintiff's job performance. While this obviates one defect in the original complaint, the amended complaint still fails to allege a cognizable infringement of his liberty interests. To be actionable, the rating must have falsely called into question plaintiff's "good name, reputation, honor, or integrity," Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 1980) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1970)). An unsatisfactory professional rating by itself does not amount to the type of "stigma" necessitating a hearing under the Due Process Clause. Haron v. Board of Ed., 411 F. Supp. 68, 72 (E.D.N.Y. 1976). Since the rating in this case did no more than question plaintiff's leadership and administrative abilities, no stigma, within the meaning of the Due Process Clause, can be said to have attached. Russell v. Hodges, 470 F.2d 212 (2d Cir. 1972).

 Plaintiff's renewed attempt to revive his claim that the procedures utilized in his bylaw 105a appeal were unconstitutional must also fail despite his new allegation that no Chancellor ever reviewed the committee's findings. This Court has previously held that non-tenured employees have no due process right to have the Chancellor review the findings of a pre-termination hearing simply because the bylaws of the Board of Education provide such a procedure. Weiss v. Anker, 421 F. Supp. 1040, 1043 (E.D.N.Y. 1976). The rationale for this rule is simple: the results of a 105a hearing are merely advisory and are not binding on the Chancellor. Kaufman v. Anker, 42 N.Y.2d 835, 838, 397 N.Y.S. 2d 376, 377, 366 N.E.2d 77 (1978). Furthermore, while plaintiff may have had a due process right to the hearing, see Weiss, supra, he not only was afforded such a hearing, but he also was granted the court-ordered right to a de novo 105a hearing if he should request it. Quite simply, plaintiff has received all the due process that was mandated in this situation.

 We now turn to the one claim that survived the defendants' previous motion for summary judgment. As previously stated, to sustain a claim to tenure by estoppel under New York law, plaintiff must show that he rendered actual service beyond his probationary term in the same or similar position performing substantially similar duties with the Board's knowledge and consent. Orshan v. Anker, 489 F. Supp. at 825. Counsel for plaintiff, however, continues to argue that tenure can be acquired simply by a school board failing to provide an explicit written denial of tenure when that omission is coupled with affirmations of tenure by Board agents to third parties or to the personnel record. *fn1" Unfortunately, counsel points to no judicial decision which supports this position. Even if we were to agree, this Court is bound by the rulings of New York courts on this question of State law. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). We thus adhere to our previous interpretation of the requirements of tenure by estoppel under New York law and turn to the issue of whether summary judgment is appropriate.

 The only material issues of fact reserved by our previous review of plaintiff's claim to tenure by estoppel were: (1) whether the duties performed by plaintiff after his removal as principal of Julia Richman High School fell within the same "tenure area" as a principal of a day high school; and (2) whether the defendants consented to such continued service beyond plaintiff's three-year probationary period. Both parties now agree that these questions no longer present issues of fact unresolvable on summary judgment.

 Although tenure area is now governed by statute, N.Y. Educ. Law § 2588 (McKinney 1981) (effective July 1, 1976) (license area equals tenure area), this legislation cannot be applied retroactively. See Steele v. Board of Ed., 40 N.Y.2d 456, 464, 387 N.Y.S.2d 68, 71, 354 N.E.2d 807 (1976). Hence, the parameters of tenure ...


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