Fuentes v. Roher, s. 1077

Citation519 F.2d 379
Decision Date29 May 1975
Docket NumberNos. 1077,1137,D,s. 1077
PartiesLuis FUENTES, Plaintiff-Appellant, v. Adolph ROHER et al., Defendants-Appellees. Georgina Hoggard et al., Defendants-Appellants. ockets 75-7213, 75-7224.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Herbert Teitelbaum, New York City (Jack John Olivero, Kenneth Kimerling, Richard J. Hiller, Puerto Rican Legal Defense & Education Fund, Inc., New York City, on the brief), for plaintiff-appellant.

Arnold Rothbaum, Brooklyn, for defendants-appellants Hoggard, Wong, Ramos, and Barreto.

Doron Gopstein, New York City (W. Bernard Richland, Corp. Counsel of the City of New York, New York City, of counsel, Steven C. DeCosta, New York City, on the brief), for defendants-appellees.

Before KAUFMAN, Chief Judge, OAKES, Circuit Judge, Jameson, District Judge. *

IRVING R. KAUFMAN, Chief Judge :

Although one scarcely any longer hears of the truant officer, the reason is not because the Golden Rule has rendered the hickory stick obsolete in school administration. It might in fact be suggested that the federal courts have taken over that ogre's duties, and numerous others as well, from regulation of hair styles, Stevenson v. Board of Education, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970), to supervision of suspensions, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), from review of a teacher's right to refuse to pledge allegiance to the flag, Russo v. Central School District No. 1, 469 F.2d 623 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973), to oversight of the student's right to wear an armband. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). This case presents us with the somewhat more complex, though no less unwelcome, task of meddling in an intramural fray involving not unruly students, but the board of education and the community school district superintendent.

Luis Fuentes, the community superintendent, appeals from the denial of his motion for a preliminary injunction and the dismissal of his underlying action, which charged that his suspension and the board's efforts to secure his discharge violated his fourteenth and first amendment rights of free speech and procedural due process. Several members of the board also join him in seeking to overturn a subsequent order of the district court directing the appointment of a hearing examiner to review the charges made against Fuentes. We affirm; we also modify and remand in the respects indicated below.

I. FACTS

A. Background. Luis Fuentes, superintendent of Community School District Number One on the lower east side of Manhattan, signed a contract of employment with the community school board on October 31, 1972. The contract, due to expire on July 31, 1975, delegated to Fuentes

the duties specified in Sections 2590-(f) (2590-f) 2590-(j) (2590-j) (7) and (8) of the New York Educational Law (McKinney's Consol.Laws, c. 16), and such other duties as the School Board shall hereafter assign, subject in all the foregoing instances to the policies, procedures and specific instructions of the School Board; or any of its duly authorized subcommittees. . . .

Unfortunately, as appellant's brief indicates, School Board politics in District One has been heated, vitriolic and often slanderous, and Fuentes's tenure has been a stormy one. The dispute which eventuated in this action began after the school board election in May of 1973, which was essentially a struggle between two factions: the Coalition for Education in District One, whose candidates mostly minority group members were drawn from the incumbent board, and the Committee for Effective Education (CEE), an organization supported by the United Federation of Teachers and sponsoring one black and eight white candidates. The bitterly fought election resulted in the choice of six CEE candidates (Adolph Roher, Richard Lee Price, Donald S. Brown, Lyle Brown, Saul Mildworn, and Carolyn Kozlowsky), and three Coalition members. Several months after the new board took office, the CEE board members prevailed on a vote taken on October 16, 1973, to suspend Fuentes without pay. Among the 31 charges that the board found to support the dismissal (discussed more fully infra at B.) was an allegation that Fuentes had "engaged in partisan political conduct during the campaign for the election . . .."

The majority board members were not, however, alone in their dissatisfaction with the conduct of the May election. Less than one month before Fuentes's suspension, on September 18, 1973, the Coalition along with several unsuccessful candidates and members of minority groups had begun an action in the United States District Court for the Southern District of New York, claiming that various acts by employees of the Board of Elections had resulted in a discriminatory impact on the rights of minority voters. Coalition for Education in District One v. Board of Elections, City of New York, 370 F.Supp. 42 (S.D.N.Y.), aff'd, 495 F.2d 1090 (2d Cir. 1974). Although Fuentes was not a party to the action, the plaintiffs in that case succeeded on October 19, 1973 in getting an injunction against his suspension. Fuentes's original complaint in this action, charging interference with his rights of free speech and association, together with violations of New York state law, was filed on December 21, 1973, but because of the outstanding order in the Coalition case no action was taken on Fuentes's complaint filed on December 21. This Court ultimately sustained Judge Stewart's finding of discrimination in connection with the 1973 election, and ordered new elections which took place on May 14, 1974. 495 F.2d 1090 (2d Cir. 1974).

The court-ordered election returned five CEE candidates (Roher, Price, and Kozlowsky, as well as Jerome Goodman and Martin Rubin), and the four Coalition members who are nominal defendants in this case (Georgina Hoggard, Henry Ramos, Carmen Barreto, and Janice Wong). On August 8, 1974 the new board took up its unfinished business. By resolution (5-0, with four abstentions) it preferred the 31 charges referred to earlier against Fuentes and added ten new allegations. Fuentes was suspended with pay pending a hearing and determination of these charges. Deputy superintendent Annie Mersereau was appointed acting superintendent, and Fuentes was directed to remain away from the school district offices until the hearing was concluded.

B. The Charges. Since the nature of the charges against Fuentes are crucial to the issues raised on this appeal, we deem it appropriate to mention at least the more significant ones. Charge I, dealing with "Improper Commitment and Expenditure of Public Funds," contains among its four specifications the charge that Fuentes, without the board's knowledge, permitted the successful bidder for the school lunch program contract to withdraw in May of 1974, at a cost to the district of some $24,000. Charge II, "Deceit, Insubordination and Conduct Prejudicial to the Good Order of the District," states among other things that Fuentes threatened violence to members of the board who did not make "wise" decisions; that he called board chairman Roher a "liar" in the course of one board meeting, and at another stated that he was "through dealing with (Roher) as a human being"; it also alleges that in May of 1974 Fuentes "engaged publicly in partisan political activity on behalf of certain candidates for election to the School Board and in opposition to other candidates, certain of whom were thereafter elected to the board, thereby reducing and impairing his ability to function as an employee of said Board and its duly elected members." Charge III, "Breach of Employment Contract Dated October 31, 1972," alleges among other specifications that during July, August, September and October of 1973 Fuentes made more than 60 appointments to teaching positions in the district without informing the board, contrary to paragraph (3)(b) of his contract. Charge IV, "Insubordination, Neglect of Duty and Inefficiency," states inter alia that Fuentes ignored the board's instruction to investigate and report assaults on children and a parent at P.S. 110, and failed to carry out an order to conduct an investigation of charges of anti-Semitism at J.H.S. 22. Charge V, "Insubordination," specifies that Fuentes refused to carry out the board's order to discharge two individuals in July and August of 1973. Charge VI dealt with miscellaneous sorts of "Misconduct." Charge VII, which together with the single statement in Charge II concerning political activity forms the basis for Fuentes's first amendment claim, states that during April of 1973 he engaged in "partisan electioneering by the use of a sound truck," and that he "engaged in partisan political conduct during the campaign for the (1973) election. . . . "

C. Hearing Procedures. The state of New York is quite protective of the rights of tenured teachers and supervisors. Before they may be dismissed a full evidentiary hearing must be afforded. N.Y. Education Law § 2590-j(7) (McKinney's Consol.Laws, c. 16, 1970), 2573(6) & (7) (McKinney Supp.1974-75). Higher-ranking educational officials, however community superintendents and, indeed, the chancellor of the city school system are removable simply "for cause." Id. § 2590-e(1)(a), § 2590-h (McKinney Supp.1974-75).

Despite the provisions of the Education Law, Fuentes's contract specified that dismissal should only take place upon a two-thirds vote of the local school board, and that

Cause shall consist only of those matters enunciated in subdivision 7(b) of Section 2590-(j) (2590-j) of the Education Law. School Board, except as they shall be inconsistent herewith, shall be subject to the procedural rules of subdivision 7 of Section 2590-(j) (2590-j) of the Education Law, provided that school board shall...

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