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LOMBARD v. BOARD OF EDUC. OF NEW YORK

March 3, 1992

JOHN LOMBARD, Plaintiff, against THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendant.


The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 This is a lawsuit by a licensed teacher based on the alleged deprivation of a property right without Due Process of law within the meaning of the Fourteenth Amendment. The property right at issue is the right of a licensed teacher to a meaningful opportunity to seek employment in the New York City Public School System. This action is one brought directly under the Due Process clause of the Fourteenth Amendment and not under a Section 1983 theory.

 Before getting into the facts of this particular lawsuit, the Court will review the extensive prior litigation underlying this plaintiff's continuous attempts to obtain employment as a teacher in the school system administered by the defendant Board of Education of the City of New York (the "Board").

 BACKGROUND

 As background only, this Court adopts portions of the factual statements set forth in the opinion of Judge Edward R. Korman dated October 29, 1986 rendered in regard to the Board's motion for summary judgment, and in the opinion of the Second Circuit in Lombard v. Board of Education of the City of New York, 502 F.2d 631 (2d Cir. 1974).

 On September 1, 1966, the plaintiff was assigned as a teacher at P.S. 151 in the New York City public school system and commenced a three year probationary period.

 Although the plaintiff initially received a satisfactory rating during the probationary period, the principal of P.S. 151 eventually gave the plaintiff an "unsatisfactory" rating and submitted a report to the Board recommending discontinuance of his probationary appointment. The report further recommended that the plaintiff be directed to submit to a medical examination to determine his fitness to teach. In May and June 1969, the plaintiff was examined by Board physicians, was found medically unfit for teaching duties and was placed on an involuntary medical leave of absence until January 31, 1970. After additional medical examinations, the leave of absence was extended to June 30, 1970.

 On April 20, 1970, a hearing was held before a Committee of the Superintendent of Schools concerning the plaintiff's probationary status. At this hearing, the plaintiff was permitted to present evidence but he could not cross-examine the reports of the principal and the physicians. The Committee recommended that the plaintiff's probationary appointment be discontinued, based, essentially on his "illogical and disoriented conversation." On June 11, 1970, the Local School Board adopted the recommendation of the Committee and voted to terminate the plaintiff's probationary appointment. The plaintiff's license was then either revoked or deemed revoked. On May 26, 1971, the plaintiff's file number was placed in a circular distributed to superintendents and principals indicating that he could not be employed in any public school because of the discontinuance of his probationary appointment.

 In the state court, the plaintiff brought two Article 78 proceedings in which he challenged both the forced leave of absence and the determination to discontinue his probationary appointment. Both of these proceedings were dismissed. The second Article 78 proceeding seeking to review the termination of his probationary appointment was affirmed by the Appellate Division and leave to appeal was denied by the New York Court of Appeals.

 In the Federal Court, in 1972 the plaintiff commenced a Section 1983 action alleging civil rights violations, challenging both the termination of his employment as a probationary teacher and his disqualification from teaching with a substitute license and seeking reinstatement of his license, back pay and damages. This action was dismissed by Judge Travia, without opinion, on the ground that the complaint failed to state a cause of action.

 On appeal, the Second Circuit reversed in an opinion by Judge Gurfein, finding that although "Lombard did not have tenure and, therefore, presumptively had no property right either as a probationary or substitute teacher . . . he was deprived [by the recommendation of the Committee without his being given the right to confront witnesses] of his reputation as a person who was presumably free from mental disorder" ( Lombard v. Board of Education, 502 F.2d 631, 637 [2d Cir. 1974], cert. denied 420 U.S. 976, 43 L. Ed. 2d 656, 95 S. Ct. 1400 [1975]). The Court held that as a result of the charge of mental illness leveled against him, without the right to confront witnesses, the plaintiff "may claim a deprivation of liberty under the due process clause of the Fourteenth Amendment."

 On remand, Judge (now Chief Judge) Platt dismissed the action after trial in Lombard v. Board of Education, 440 F. Supp. 577 (E.D.N.Y. 1977). Subsequent to the Second Circuit decision in Lombard, the Supreme Court made it clear that to constitute a deprivation of liberty interest, the stigmatizing information must be both false and made public. (See Codd v. Velger, 429 U.S. 624 , 51 L. Ed. 2d 92, 97 S. Ct. 882 [1977]; Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 [1976]; Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 [1976]; Gentile v. Wallen, 562 F.2d 193 [2d Cir. 1977]). Judge Platt concluded that such evidence was lacking and dismissed the plaintiff's deprivation of liberty claim. With regard to the plaintiff's property interest claims, Judge Platt held that the plaintiff's claim for reinstatement was moot because the Board had in fact recognized the plaintiff's license as valid and reinstated by reason of a decision of the Commissioner of Education in Matter of Baronat, 11 Ed. Dept. Rep. 150 (1972). From April 26, 1973 and thereafter, the Board considered the plaintiff's license to be in full force and effect. Accordingly, Judge Platt concluded that it was unnecessary for him to reach the issue of whether the prior revocation of the license deprived Lombard of a property interest.

 THIS LAWSUIT

 The plaintiff alleges in this action that although his license was not formally revoked and has, in any event, been reinstated since April 26, 1973, his license has been "constructively revoked" because the defendant Board has prevented him from obtaining employment anywhere in the New York City public school system (Complaint PP47, 58). Specifically, the plaintiff asserts that the defendant Board has, without a hearing, denied him "the right to work under his license and has denied him the benefits of such license" (Complaint P48), that "the Board of Education and/or its administration refused to grant [him] a teaching assignment" (Complaint P56), that "plaintiff responded to an advertizement [sic] and on December 16, 1981, plaintiff was accepted in a program for training for 'Special Education' classes" (Complaint P31), that on December 18, 1981, without cause, plaintiff was told that he would not be permitted to remain in the program and he was told to leave" (Complaint P32), that the Board refused to refer him to community school boards for consideration for employment (Complaint PP26-44), and that he was unable to obtain employment by approaching the Central Board or the local school districts directly, except sporadically as a substitute teacher.

 The plaintiff further alleges that in District 25 and District 17 he was refused work as a regular teacher (Complaint PP36, 41), was only permitted to work on a per diem basis, and was told at a recruiting conference that "you do not belong here" (Complaint P51).

 In sum, the thrust of the plaintiff's complaint is that even though he has a valid teacher's license, it has been "constructively revoked" by reason of the Board's actions in preventing him from working as a teacher in any of the local school boards. In the complaint, the plaintiff alleged that these acts deprived him of his rights to property and liberty without due process of law and of his right to equal protection of the law, in violation of the Fourteenth Amendment.

 JUDGE KORMAN'S DECISION OF 10/29/86

 As to the plaintiff's due process "property rights" claim, Judge Korman held that a license "confers no more than a mere expectancy of employment, and does not confer any claim to a specific position or, for that matter, to any further employment" ( Matter of Lowenstein, 9 Ed. Dept. Rep. 207, 209 [1970]). Further, as a licensed but untenured teacher "plaintiff has no constitutionally protected property interest in employment as a teacher, and his allegations concerning the Board's refusal, either directly or indirectly, to afford him employment fall far short of stating a cause of action for deprivation of property without due process of law" (see Ricca v. Board of Education, 47 N.Y.2d 385, 393, 418 N.Y.S.2d 345, 391 N.E.2d 1322 [1979]; Gordon v. Anker, 444 F. Supp. 49, 51-53 [S.D.N.Y. 1973]; Matter of Mancini, 14 Ed. Dept. Rep. 420, 421-422 ([1975]).

 Plaintiff's second theory with regard to his claim to a property interest was based on an alleged entitlement to a meaningful opportunity to apply for a teaching position. It is this opportunity which the plaintiff contends is a property right warranting due process protection. He claims he has been deprived of this right as a result of the conduct of the defendant Board in directing the community school districts not to hire him.

 Judge Korman noted that the impetus for then Commissioner of Education Nyquist's decision in Baronat was the enactment, in 1969, of New York Education Law Article 52-A, which "decentralized" the single New York City School District into thirty-one separate "community school districts." The power to appoint and dismiss elementary school teachers was taken from the Central Board and vested in the local community school districts. As stated by Commissioner Nyquist in Baronat, this statute has had a significant effect on the value and utilization of a New York City teacher's license, as follows:

 "Prior to the enactment of the decentralization statute and the creation of 31 community school districts as semi-autonomous units of the New York City school system, employment and licensure in that system were, for all practical purposes synonymous. Termination of employment left the existence of such a license a hollow form, without any legal substance. Since the enactment of Education Law Article 52-A, however, where a teacher is dismissed from employment by one of these 31 community districts, he may be re-employed by any of the other 30 such districts, provided he holds a license. The license, therefore, is now a valuable property right and is entitled, as such, to the protection set forth in the decision in Hecht v. Monaghan [307 N.Y. 461, 121 N.E.2d 421 (1954)] and its progeny." (11 Ed. Dept. Rep. at 153).

 Based on the changes caused by the statute, on Baronat and other authorities, Judge Korman determined that the plaintiff's complaint stated a cause of action for deprivation of property within the meaning of the Fourteenth Amendment, with regard to affording him a meaningful opportunity to seek a teacher's position in the New York City Public School System:


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