401 F.3d 75 (2nd Cir. 2005), 03-7875, Velez v. Levy

Docket Nº:03-7875.
Citation:401 F.3d 75
Party Name:Amy VELEZ, Plaintiff-Appellant, v. Harold O. LEVY, Chancellor of the City School District of the City of New York, individually and in his official capacity, Jacob Goldman, individually and in his official capacity as a member of New York City Community School District # 1, Nancy Ortiz, individually and in her official capacity as a member of New Y
Case Date:March 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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401 F.3d 75 (2nd Cir. 2005)

Amy VELEZ, Plaintiff-Appellant,

v.

Harold O. LEVY, Chancellor of the City School District of the City of New York, individually and in his official capacity, Jacob Goldman, individually and in his official capacity as a member of New York City Community School District # 1, Nancy Ortiz, individually and in her official capacity as a member of New York City Community School District Board # 1, Joyce Early, individually and in her official capacity as a member of New York City Community School District # 1, Thomas Hyland, individually and in his official capacity as Deputy Director of the Chancellor's Office of Special Investigations, Anthony DeLeo, individually and in his official capacity as Confidential Investigator in the Chancellor's Office of Special Investigations, Robert Colon, individually and in his official capacity as an Investigator in the Chancellor's Office of Special Investigations, Defendants-Appellees.

No. 03-7875.

United States Court of Appeals, Second Circuit.

March 11, 2005.

Argued: April 12, 2004

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James I. Meyerson, New York, NY, for Plaintiff-Appellant.

Stacy Laine Francolla, Assistant Corporation Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York (Francis F. Caputo, of counsel), New York, NY, for Defendants-Appellants.

Before: OAKES, WINTER, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge.

We are faced today with the question of whether plaintiff, an elected New York City community school board member, may properly state a claim under the United States Constitution for injuries suffered in connection with her forced removal from office based on allegedly trumped-up charges of criminal behavior. Plaintiff-appellant Amy Velez, a member of Community School District Board # 1, has filed a suit pursuant to 42 U.S.C. § 1983 asserting constitutional and state law causes of action against seven defendants. First, she alleges that three fellow board members--defendants-appellees Jacob Goldman, Nancy Ortiz, and Joyce Early--conspired to fabricate, and to disseminate publicly, accusations that she had sprinkled a powdery substance in front of the office door of another school official. These defendants, Velez asserts, did this out of political animus and in an effort to cause her removal. Second, she contends that three individuals in the Chancellor's Office of Special Investigations--defendants-appellees Deputy Director Thomas Hyland, Confidential Investigator Anthony DeLeo, and Investigator Robert Colon--conducted an "irrational" and "illogical" investigation that resulted in a politically motivated report recommending Velez's removal. Third, she claims that the then-Chancellor of the City School District of the City of New York, Harold O. Levy, arbitrarily and capriciously ordered her

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removal in punishment for her political positions.

On the basis of these allegations, Velez proffers several potential constitutional causes of action. She asserts: (1) that her removal constituted the denial of a property right in violation of the procedural requirements of the due process clause of the Fourteenth Amendment; (2) that her removal and the attendant stigma also deprived her of liberty without due process of law; (3) that the actions of the various defendants constituted violations of substantive due process; (4) that her removal was in retaliation for her stated political views and consequently in violation of the First Amendment; and (5) that her removal constituted an unlawful "seizure" under the Fourth Amendment. The district court, finding no colorable constitutional claim and declining to exercise supplemental jurisdiction over Velez's various state law claims, dismissed her complaint pursuant to Fed.R.Civ.P. 12(b)(6). Velez v. Levy, 274 F.Supp.2d 444 (S.D.N.Y.2003).

While we agree with the lower court that Velez lacks a constitutional property interest, and that her allegations are insufficient to make out a Fourth Amendment violation or a substantive due process violation, we conclude that her First Amendment and procedural due process liberty interest claims are viable, though not against all of the defendants. We further find that qualified immunity cannot, at this stage, bar these claims. We therefore affirm in part and vacate in part the judgment of the district court and remand the case for further proceedings.

I. BACKGROUND

In reviewing a dismissal pursuant to Fed.R.Civ.P. 12(b)(6), we "accept[ ] all allegations in the complaint as true and draw[ ] all inferences in favor of the plaintiff." ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 221 (2d Cir.2001). Our undertaking here is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). With this in mind, we set forth the facts alleged that are relevant to the legal disputes in this case.

A. The structure of the community school board

Amy Velez, a resident of the Lower East Side of Manhattan, was an elected member and treasurer of New York City Community School District Board # 1 ("Board # 1"). 1 She was elected to a three-year term in May of 1999, and the state legislature later extended her term by one year. 2 Pursuant to Article 52-A of the New York Education Law, the City School District of the City of New York ("the District") is divided into 32 community school districts, each of which is governed by a community school district board. See Warden v. Pataki, 35 F.Supp.2d 354, 358 (S.D.N.Y.1999); N.Y. Educ. Law § 2590-b (McKinney 2001). These boards, including Board # 1, are composed of nine members. See id. § 2590-c. A seven-member city board--with one member appointed by each of the five borough presidents and the remaining

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two by the mayor--oversees and administers the community boards. See id. § 2590-b. The city board appoints the Chancellor, who serves for a fixed term that cannot exceed by more than one year the term of the city board which appointed him. See id. § 2590-h. The duties, powers, and relationships of these various entities are all fixed by statute and are described in detail in Article 52-A of the New York Education Law. The chief responsibility of the community board is to "establish educational policies and objectives, not inconsistent with the provisions of this article and the policies established by the city board, with respect to all" nursery, elementary, and middle school students within its geographical purview. N.Y. Educ. Law § 2590-e. The community boards have "no executive or administrative powers or functions," but they fulfill a number of advocacy and advisory roles, including, inter alia, "prepar[ing] a school district report card," "promot[ing] achievement of educational standards and objectives," "[a]pprov[ing] zoning lines," and "[p]rovid[ing] input... to the chancellor and the city board on matters of concern to the district." Id.

Although community board members are publicly elected officials, the Chancellor has unilateral statutory authority to suspend or remove them under certain circumstances. Specifically, N.Y. Educ. Law § 2590- l(1)(a) provides that the Chancellor may remove a community board member if he or she "fails to comply with any applicable provisions of law, by-laws, rules or regulations, standards, directives and agreements." Ordinarily, the Chancellor is required to provide an "opportunity for conciliation" prior to removal, but he or she is empowered to remove without conciliation any board member who has engaged in conduct that is "criminal in nature," or constitutes an immediate threat to student or staff "safety or welfare," or is "contrary to the best interest of the city school district." Id. § 2590- l(1)(b). Within fifteen days of removal, the board member may file an appeal with the city appeals board. Id. § 2590- l(2).

B. The events leading to plaintiff's removal

Velez served on Board # 1 alongside board members defendants Early, Goldman, and Ortiz. According to her, the three defendants were part of a four-person minority on the board that opposed Velez's majority voting bloc on several key issues. Among these were (1) the retention of Helen Santiago as the Superintendent of District # 1, and (2) admission criteria for a new K-12 school known as the New Explorations in Science and Technology (NEST) school. Additionally, Velez had earlier opposed the vacancy-filling appointment of Ortiz to Board # 1. The board's subsequent failure to reach a consensus on Ortiz's nomination led the Chancellor to "step in" and appoint Ortiz over Velez's objections. As a general matter, both sides agree that the plaintiff frequently engaged in political conflict with the defendant board members and Chancellor Levy.

A community board meeting held at P.S. # 137 on January 23, 2002, exemplified that conflict. During that session, the board considered various aspects of Chancellor Levy's diversity policy, including the selection criteria for the NEST school. Velez clashed with Ortiz, Goldman, and Early, all three of whom opposed her alternative diversity proposal. But it was a dispute over what happened after the meeting that ultimately led to Velez's removal and subsequent reinstatement. According to defendant Ortiz, Velez left the meeting and proceeded to the office of Acting Superintendent Santiago, which was located inside the school. There, on

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Ortiz's account, she sprinkled a suspicious, pink, powder-like substance in front of the office door and also dropped a plastic bag containing additional powder. 3 Velez vehemently denies having done this, on...

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