Bergstein v. Board of Ed., Union Free School Dist. No. 1 of Towns of Ossining, Et Al.

• Decision Date: 12 June 1974
• Citation: 34 N.Y.2d 318,313 N.E.2d 767,357 N.Y.S.2d 465
• Parties: , 313 N.E.2d 767 In the Matter of Leonard BERGSTEIN et al., Respondent, v. BOARD OF EDUCATION, UNION FREE SCHOOL DIST. NO. 1 OF the TOWNS OF OSSINING, ET AL., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 465

357 N.Y.S.2d 465

34 N.Y.2d 318, 313 N.E.2d 767

In the Matter of Leonard BERGSTEIN et al., Respondent, v. BOARD OF EDUCATION, UNION FREE SCHOOL DIST. NO. 1 OF the TOWNS OF OSSINING, ET AL., Appellant.

Court of Appeals of New York.

June 12, 1974.

Arnold B. Green, White Plains, for appellant.

Stephan A. Perelson, New York City, of counsel and Eugene M. Kaufman, New York City, for respondent.

Bernard T. McGivern, Scotia, for The New York State School Boards Association, Inc., amicus curiae.

JASEN, Judge.

This appeal involves the question of whether petitioner, a probationary teacher, established a prima facie case that tenure was denied him in violation of his constitutional rights of freedom of speech and association.

Petitioner, Leonard Bergstein, was hired by respondent Ossining School Board in June, 1968, as a probationary teacher, to teach a social studies course. He remained in that untenured position for the next three academic years. On August 16, 1971, he was denied tenure by the respondent school board pursuant to section 3012 of the Education Law.

Thereafter, the petitioner brought this article 78 proceeding to review the school board's determination denying him tenure, alleging that the decision by the board to terminate his employment as a teacher was made in violation of the First and Fourteenth Amendments of the United States Constitution. Specifically, petitioner claimed that he was denied tenure for the following reasons, to wit: that he attended 'a peaceful political rally taking place at other than school hours'; that he made 'available to his students, as optional reading material, integrated into the regular Social Studies curriculum, regarding the United States Constitution, a pamphlet explaining student rights under the First Amendment of the United States Constitution'; that he wore 'a western-style hat between his place of residence and his place of employment'; and because he was 'a member of the Jewish Race and Religion, active in liberal political causes'.

After a hearing, Special Term dismissed the petition, holding, in effect, that petitioner failed to establish a prima facie case. The court found that '(n)o witness produced on behalf of the petitioner has testified that any of those board members who voted against tenure had ever stated, in word or substance, or otherwise indicated, that the reason petitioner was denied tenure was because of either his political philosophy, his racial attitudes, his religious beliefs or his choice of attire.'

The Appellate Division held that Special Term had relied upon hearsay statements in determining that the board members had not based their denial of tenure on constitutionally impermissible grounds and, accordingly, ordered a new hearing 'at which the respondent board shall have an opportunity to produce legal and competent evidence to establish that tenure was not denied for impermissible reasons'.

We conclude that the petitioner failed to substantiate his allegations of constitutional deprivation and, thus, the order appealed from should be reversed.

Preliminarily, it should be noted that a school board may deny tenure to a probationary teacher without affording the teacher a hearing and without stating any reasons for its action. (Matter of High v. Board of Educ., 169 Misc. 98, 6 N.Y.S.2d 28, affd. 256 App.Div. 1074, 11 N.Y.S.2d 669, affd. 281 N.Y. 815, 24 N.E.2d 486; Matter of Tischler v. Board of Educ., 37 A.D.2d 261, 323 N.Y.S.2d 508; Matter of Pinto v. Wynstra, 22 A.D.2d 914, 255 N.Y.S.2d 536.) The purpose of this rule is to afford the school board broad discretion in determining whether or not to grant tenure to a probationary teacher. (Matter of Tischler v. Board of Educ., Supra, 37 A.D.2d at p. 263, 323 N.Y.S.2d at p. 511; Matter of McMaster v. Owens, 275 App.Div. 506, 90 N.Y.S.2d 491.) As broad as the board's discretion may be, however, it is also the rule that a school board may not deny tenure to retaliate for a teacher's exercise of his constitutional rights of free speech and association. (Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; Matter of Tischler v. Board of Educ., Supra.) Thus, in alleging that tenure was denied because he exercised certain rights guaranteed him by the Constitution, the petitioner had framed a viable cause of action. Having set out a good cause of action, petitioner was then required to come forward at the hearing and establish his allegations, by more than mere averments in the petition, that the decision to deny him tenure was, in fact, based on his free speech activities, race or religion. (Board of Regents v. Roth, Supra, 408 U.S. at pp. 574--575, 92 S.Ct. 2701.) This, we agree with Special Term, the petitioner failed to do, and, hence, the petition was properly dismissed. On the evidence presented, there is no support for the contentions of the petitioner that the school board denied him tenure for unconstitutional reasons.

Quite apart from our conclusion that the petitioner failed to meet...