913 F.2d 1064 (3rd Cir. 1990), 89-3615, Bradley v. Pittsburgh Bd. of Educ.

Docket Nº:89-3615.
Citation:913 F.2d 1064
Party Name:Earl BRADLEY and Diane Murray v. PITTSBURGH BOARD OF EDUCATION, Richard C. Wallace, individually and in his capacity as Superintendent of the Pittsburgh Public School System, Lee B. Nicklos, individually and in her capacity as Director of Personnel of the Pittsburgh Board of Education and William Fisher, individually and in his capacity as Principa
Case Date:September 05, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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913 F.2d 1064 (3rd Cir. 1990)

Earl BRADLEY and Diane Murray



individually and in his capacity as Superintendent of the

Pittsburgh Public School System, Lee B. Nicklos,

individually and in her capacity as Director of Personnel of

the Pittsburgh Board of Education and William Fisher,

individually and in his capacity as Principal of Taylor

Allderdice High School [*].

Appeal of Earl K. BRADLEY.

No. 89-3615.

United States Court of Appeals, Third Circuit

September 5, 1990

Argued March 15, 1990.

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[Copyrighted Material Omitted]

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Edward A. Olds (argued), Pittsburgh, Pa., for appellant Earl K. Bradley.

Susan K. Wright, David M. Neuhart (argued), Dickie, McCamey & Chilcote, P.C., Pittsburgh, Pa., for appellee Pittsburgh Bd. of Educ.

Before SLOVITER, BECKER, and STAPLETON, Circuit Judges.


SLOVITER, Circuit Judge.

Plaintiff Earl Bradley filed a civil rights action under 42 U.S.C. Sec. 1983, contending that he was suspended and then terminated from his position as a public high school teacher because defendant school officials disapproved of his use and advocacy of a classroom management technique he had developed. He claims he was suspended without procedural due process and that he was terminated in violation of his rights to free speech, to petition the government, equal protection, and substantive due process. The district court granted summary judgment for defendants. On appeal, we must decide whether Bradley's unsuccessful appeal of his termination through the Pennsylvania state administrative process and state courts precludes him from raising his federal claims here notwithstanding his explicit reservation of these claims. If we find he is not so precluded, we must evaluate the merits of his constitutional claims.

I. Factual and Procedural Background

The facts recited hereafter are taken from the record in this case and those established in the state proceeding. They are, in the main, undisputed.

Earl Bradley taught in the Pittsburgh public schools from 1964 to 1985, last at Taylor-Allderdice High School. During his tenure he developed and was the leading advocate of a classroom management technique known as Learnball. According to plaintiff, Learnball "is an eclectic gathering of well established ideas and techniques" which "involves students in a democratic model to maintain effective classroom discipline and good morale ... [and] facilitates teaching and learning by establishing an atmosphere of good sportsmanship and teamwork." Brief for Appellant at 11. As we stated in our recent opinion in Bradley v. Pittsburgh Board of Education (Murray, Appellant), 910 F.2d 1172, 1174 (3d Cir.1990), involving the claims of Diane Murray, who was Bradley's co-plaintiff in the district court, "Learnball's basic elements ... include a sports format, peer approval, dividing each class into teams, student election of team leaders and an assistant teacher, giving students responsibility for establishing class rules and grading exercises, and imposing a system of rewards such as radio playing and shooting baskets with a foam ball in the classroom."

Bradley promoted the use of Learnball through articles in newspapers, academic journals, and a newsletter published by an organization known as the Learnball League, of which he was President. The Learnball method has been adopted by other teachers. In connection with his advocacy of Learnball, Bradley publicly criticized the current Pittsburgh school regime, the high dropout rate and the disparity between students in advance placement classes and those in other classes.

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School officials did not approve of Bradley's use of Learnball. In 1979, after the Pittsburgh Board of Education (Board) threatened to discipline Bradley for his persistent use of the method, Bradley agreed not to use Learnball if he was directed not to. Following the settlement, Bradley was transferred to Taylor-Allderdice High School, where William Fisher was the principal. Despite Fisher's subsequent instructions that Bradley not use Learnball exclusively, Bradley continued to use the method every day.

In June 1984, Bradley was given an unsatisfactory rating by Fisher, and the Board considered whether Bradley should be dismissed. On the advice of counsel, the Board declined to dismiss Bradley but directed that he be given clear instructions to cease using Learnball.

Bradley took a sabbatical during the 1984 fall term. Upon his return in January 1985 he was again told to stop using Learnball exclusively and was specifically directed to provide each student with a textbook, to stop using a whistle, to stop playing a radio in class, to stop permitting eating in class, to start giving homework more often, to stop giving students access to the grade book, and to adhere to the curricula mandated by the Board. Bradley switched from using a whistle to using a gavel; he refrained from eating in class but did prepare salads in class, in order, according to his counsel, to provide students with an example of healthy eating habits; and he began to give homework once a week.

On February 20, 1985, approximately one month after Bradley's return, he notified the school officials that he would file a workmen's compensation claim because they had created stress that prevented him from teaching effectively. Fisher and other school officials observed Bradley's class that day, met with him the following day, and then gave him an unsatisfactory rating. After Bradley filed his claim, he did not return to school for the remainder of the school year.

In March 1985, the School Board began dismissal proceedings against Bradley under Section 1122 of the Public School Code of 1949, 24 Pa.Stat.Ann. Sec. 11-1122 (Purdon 1962), which provides that a professional employee may be dismissed for "persistent negligence ... [and] persistent and wilful violation of the school laws of this Commonwealth." On August 13, 1985, Bradley received notice of a hearing to be held on his possible dismissal, but a hearing was not held until December 11, 1985. In the interim, Bradley informed school officials in October of 1985 that he wished to return to work. Although he was not officially notified of a suspension or termination, he was not permitted to return.

Bradley received neither sick benefits nor salary from August 1985 until he was dismissed fourteen months later, in September 1986. Bradley had previously applied for another sabbatical for the 1985-1986 school year. He eventually obtained the sabbatical through a union grievance and was thereafter awarded his salary for that year. 1

A hearing on Bradley's dismissal was held December 11, 1985 and January 13, 1986 before members of the Board. Bradley attended the December 11 hearing but did not attend its continuation on January 13. Although Bradley had agreed to that date, on January 9 his attorney requested a postponement because he was unable to properly prepare as a result of Bradley's failure to attend two meetings with him and because Bradley was "medically incapable" of attending the hearing. App. at 322. The only evidence of Bradley's medical condition was a handwritten note, allegedly by Bradley's doctor, which stated that in the doctor's opinion "the prudent medical course of action for Dr. Bradley to pursue was not to attend the January 13, 1986 legal hearing." Id. The Board denied the request for a continuance.

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Following the hearing, Bradley's attorney requested that the Board reopen the dismissal hearing, representing that Bradley would be able to participate. The Board denied the request, based on Bradley's failure to satisfactorily explain why he could not attend the January hearing.

On July 8, 1986, while the matter was before the Board, Bradley filed this suit in federal court against the Board, Richard Wallace, Superintendent of the Pittsburgh Public School System, Lee Nicklos, Director of Personnel of the Pittsburgh Board of Education, and William Fisher, his principal, alleging that they disciplined him in retaliation for his use and advocacy of Learnball in violation of the First Amendment, that they denied him equal protection of law by forbidding him from using Learnball while other teachers were not limited in the methods they could use, that they denied him due process when they deprived him of his job without affording him an opportunity to be heard, and that they intentionally caused emotional and physical distress. Bradley requested declaratory and injunctive relief as well as compensatory and punitive damages.

In September 1986, the Board formally dismissed Bradley. It determined that Fisher's directive that Bradley refrain from using Learnball was a proper instruction concerning classroom management, that there was no basis in the record to conclude that Fisher's actions were retaliatory, and that Bradley's persistent use of Learnball, his failure to keep up with the curriculum, his eating in class, and his failure to assign homework were insubordinate and "constitute[d] both persistent negligence and a willful and persistent violation of school laws." App. at 329. The Board thus concluded that Bradley should be dismissed under Section 1122 of the Public School Code.

Following his dismissal, Bradley amended his federal complaint to include claims that his dismissal was in retaliation for protected First Amendment activities and violated his substantive due process rights. Thereafter, Bradley also added a claim that Fisher had discriminated against him based on race.

In addition, Bradley followed the statutory procedure for appeal of his dismissal, first appealing to the Secretary of Education. In doing so...

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