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July 12, 1985


The opinion of the court was delivered by: WEXLER



 This is an action under 42 U.S.C. § 1983. Our previous opinion in this case is reported at 604 F. Supp. 1180.


 On May 11, 1983 defendant Board of Education abolished plaintiff's position of High School Dean, effective June 30, 1983. At the same time, the Board established a new position of High School Administrative Assistant. On May 12, 1983, the Superintendent of Schools for the district informed plaintiff of the abolition of his position, and also informed plaintiff that he would not be offered new employment for the term starting September 1983. Plaintiff is a tenured teacher under N.Y. Education Law § 3012(2). Under Education Law § 2510(2), "whenever a board of education abolishes a position . . . the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued." Under § 2510(1), "if the board of education abolishes an office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created . . ." Plaintiff contends that the new position of Administrative Assistant is essentially equivalent to plaintiff's old position of Dean, and that the discontinuance of plaintiff's services without a hearing on the issue of the similarity of the positions constituted a deprivation of property without due process in violation of the Fourteenth Amendment and 42 U.S.C. § 1983.


 Without at this time determining whether the two positions were "similar" within the meaning of Education Law § 2510(1), we note that documents submitted to the Court indicate that the positions were similar in many respects. The new position of Administrative Assistance involved all of the disciplinary functions previously performed by plaintiff as Dean. The new position, like the old position, involved responsibility for one of the two wings of the school. The new position also involved some administrative functions not involved in the old position. Appended to this opinion are the "position guides" for the two positions. Given the similarity of the positions, we believe that it is clear that a reasonable person contemplating the abolition of the position of Dean and the creation of the position of Administrative Assistant would have been alerted to the substantial possibility that plaintiff would be legally entitled to occupy the new position of Administrative Assistant pursuant to Education Law § 2510(1). The question then arises of whether, under these circumstances, the Due Process Clause of the Fourteenth Amendment required the Board to provide plaintiff with some kind of hearing before discontinuing plaintiff's services.

 The Supreme Court recently decided the case of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). There, a city Board of Education dismissed a guard for alleged dishonesty in filling out job application. Although it was undisputed that the guard had incorrectly stated on the application that he had never been convicted of a felony, the Court held that the Board was constitutionally required to give the guard a pre-termination opportunity to respond, in order to enable the guard to demonstrate that the guard had mistakenly thought that he had been convicted of a misdemeanor, and to invoke the discretion of the Board.

 The Court noted that "the significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood . . . While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job." 105 S. Ct. at 1494.

 Without annunciating a comprehensive theory regarding the circumstances in which the due Process Clause of the Fourteenth Amendment would require a hearing prior to the discontinuance of a teacher's services pursuant to Education Law § 2510(2), we hold that in the instant case the Due Process Clause required such a pre-termination hearing.

 First, in the instant case, as in Loudermill, plaintiff has been deprived of the means of his livelihood. Although the Board may ultimately appoint plaintiff to some other position, it is speculative when this will occur, if at all. Although the plaintiff (unlike the plaintiff in Loudermill), has not been stigmatized, this fact is hardly a point in the Board's favor. It would be paradoxical if an employee whose honesty had been put in doubt by a prima facie showing of dishonesty (such as the plaintiff in Loudermill) were entitled to more rights than an employee whose integrity and competence were unquestioned (such as the instant plaintiff). The fact that the instant plaintiff's integrity and competence are unquestioned tends to weight in favor of a finding that the Board had little reason to discontinue plaintiff's services without a pre-termination hearing.

 Second, as we have held, plaintiff's old position and the newly created position were sufficiently similar that the Board knew or should have known that there was a substantial possibility that plaintiff might possess a substantive right under Education should have recognized this possibility, it is not unreasonable to hold that the Due Process Clause required the Board to provide plaintiff with a pre-termination hearing.

 Third, the question of whether two positions which are arguably "similar" within the meaning of Education Law § 2510(1) are in reality "similar" within the meaning of § 2510(1) is a question which is not readily reducible to pure questions of law. While we have previously in the instant case expressed doubt that the Due Process Clause requires a hearing regarding pure questions of law, 604 F. Supp. at 1183; see Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984), the question involved in the instant case is of a type traditionally classified as a mixed question of law and fact. The Supreme Court appears to have adopted a liberal view of the circumstances requiring a hearing. See Loudermill, 105 S. Ct. at 1494 n.8. We are therefore inclined to believe that a hearing was constitutionally required in the instant case.


 The question arises as to the remedy for the Board's deprivation of plaintiff's property without due process.

 When official policy results in a person being deprived of property or liberty without procedural due process, and such deprivation would have taken place even if a proper hearing had been held, then the person is not entitled to compensatory damages for the deprivation itself. Carey v. Piphus, 435 U.S. 247, 260, 98 S. Ct. 1042, 1050, 55 L. Ed. 2d 252 (1978). The person is entitled only to nominal damages for the denial of due process, id., 435 U.S. at 266-267, unless the person demonstrates actual injury attributable to the denial of due process rather than to the deprivation, id., 435 U.S. at 263.

 In the instant case, we have held that the Board deprived plaintiff of property without procedural due process by discontinuing plaintiff's services without a pre-termination hearing. However, we have not determined (and cannot determine from the papers submitted) whether plaintiff's old position is "similar" to the newly created position within the meaning of Education Law § 2510(1). We therefore cannot determine whether plaintiff's services would have been discontinued had the Board provided a pre-termination hearing. We therefore cannot determine whether plaintiff is entitled to compensatory damages for the loss of his job. A trial will therefore be necessary. If it is determined at trial that plaintiff's old position and the newly created position were not "similar" within the meaning of Education law § 2510, then plaintiff will be entitled only to nominal damages, unless plaintiff demonstrates injury (such as mental distress) attributable not to plaintiff's loss of his job but rather to the denial of a hearing.


 The Board has argued that we should abstain from hearing this case pursuant to Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), which holds that a federal district court should abstain from ruling upon federal constitutional issues which might be rendered moot or placed in a different posture by state court determination of pertinent law.

 The Board argues that state law regarding the meaning of "similar" under Education Law § 2510(1) is unclear. As we have stated, the question of whether two positions which are arguably "similar" under § 2510(1) are in reality "similar" under § 2510(1) is a question of a type traditionally classified as a mixed question of law and fact. As we have previously suggested in the instant case, 604 F. Supp. at 1185, Pullman abstention is inappropriate for mixed questions of law and fact. See also Vinyard v. King, 655 F.2d 1016, 1019 (10th Cir. 1981).

 The Board also notes that this Court has previously questioned whether state law required a pre-termination hearing. 604 F. Supp. at 1184. The Board argues that plaintiff's federal claims would be rendered moot if a state court determined that state law required a pre-termination hearing. However, whether state law required a pre-termination hearing is irrelevant to plaintiff's federal claims under the Due Process Clause and 42 U.S.C. § 1983. The fact that state officials violated state law generally does not preclude a suit for damages under § 1983, as the federal remedy is supplementary to the state remedy, Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). An exception to this rule is made where state officials committed random unauthorized deprivations of property, Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), and perhaps also where state officials committed random unauthorized deprivations of liberaty, but see Conway v. Village of Mount Kisco, 758 F.2d 46, 48 (2d Cir. 1985); Farrell v. Miklas, 605 F. Supp. 202 (E.D.N.Y. 1985) (Wexler, J.). In the instant case, the deprivation of property was committed by a Board of Education and was therefore not "random and unauthorized", even if the deprivation may have violated state law, so that a § 1983 action is not barred. We have previously stated this. 604 F. Supp. at 1183. Consequently, state court determination of whether state law required a pre-termination hearing could not render plaintiff's § 1983 claim moot. Pullman abstention is therefore inappropriate.


 The Board has not argued for abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424, which holds that abstention is appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. If our resolution of the instant case were likely to result in frequent federal court litigation regarding the "similarity" of positions within the meaning of Education Law § 2510(1), we might well apply "Burford" abstention. However, we regard this as unlikely. We have held that the due Process Clause of the Fourteenth Amendment requires that a Board of Education provide a tenured teacher with a hearing before discontinuing such teacher's services under Education Law § 2510(2), at least in those situations in which the Board knows or should know that there is a substantial right under § 2510(1) to occupy a newly created position. In future, we expect that boards of education will provide such pre-termination hearings in such situations, thereby greatly reducing the likelihood of further federal court involvement in the interpretation of § 2510(1). Burford abstention is therefore inappropriate.


 Before closing this opinion, we have a number of comments to make.

 In McDonald v. City of West Branch, Mich., 466 U.S. 284, 104 S. Ct. 1799, 80 L. Ed. 2d 302 (1984) the Court held that an unappealed arbitration award cannot be given res judicata or collateral estoppel effect in a § 1983 action. In the instant case, it is quite possible that plaintiff had available to him the remedy of binding arbitration pursuant to state contract law. While we are bound by the Court's holding and therefore recognize that the availability of arbitration does not bar a § 1983 action, we respectfully disagree with the Court. We believe that where government employees have bargained for the creation of an arbitration procedure, there is nothing unjust in requiring such employees to pursue arbitration rather than a § 1983 action. Arbitrators will have far greater expertise in employment disputes and state civil service law than federal judges or jurors. Further, we believe that the Congress which enacted § 1983 in its original form in 1871 had no intention that the statute be given a scope anywhere near as sweeping as that currently given it through judicial interpretation. The primary purpose of the statute was to protect blacks against discriminatory Southern laws and actions by officials.

 The Supreme Court has held that where state law has created substantive property or liberty interests, the Due Process Clause of the Fourteenth Amendment sets certain requirements concerning the minimum amount of procedure necessary to destroy such interests, requirements not necessarily derived from the legislation creating the underlying substantive interests. Loudermill, 105 S. Ct. at 1492-1493; Vitek v. Jones, 445 U.S. 480, 490-491, 100 S. Ct. 1254, 1262-1263, 63 L. Ed. 2d 552 (1980). The Court has rejected the contrary view of Justice Rehnquist (joined by Chief Justice Burger and Justice Stewart) in the plurality opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974). Justice Rehnquist reasoned that where a government could legally choose not to confer a substantive right in the first place, it follows a fortiori that the government may choose (at the time of creating the substantive right) to establish the procedures by which the substantive right may be taken away. We have serious doubts as to whether Justice Rehnquist's reasoning could properly be applied to such traditional forms of property as private ownership of land. We believe that there may be constitutional limitations upon the power of the states to radically altering the traditional procedures by which such property may be taken away. However, tenured public employment is a modern phenomenon which was virtually non-existent at the time the Fourteenth ...

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