King v. Conservatorio de Musica de Puerto Rico, Civ. No. 74-93.

Citation378 F. Supp. 746
Decision Date24 July 1974
Docket NumberCiv. No. 74-93.
PartiesFrederick KING, Plaintiff, v. CONSERVATORIO de MUSICA de PUERTO RICO et al., Defendants.
CourtUnited States District Courts. 1st Circuit. District of Puerto Rico

Olaguibet A. Lopez Pacheco, Hato Rey, P. R., Josefina Lopez de Victoria, Maria V. Ferrer de Glassberg, Arturo Aponte Pares, San Juan, P. R., for plaintiff.

Geigel, Silva, Soler Favale & Arroyo, Santurce, P. R., for defendants.

OPINION AND ORDER

TOLEDO, Chief Judge.

According to Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, a person's interest in a benefit is a property interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. Sindermann, at page 601, 92 S.Ct. 2694. More specifically a teacher has a property interest in continued employment if school policies and practices — written or unwritten — upon which the teacher has relied justify a "legitimate claim of entitlement to continued employment absent sufficient cause."

The plaintiff herein, Frederick King, is a tenured professor at the Conservatorio de Musica de Puerto Rico. He files the present action under Title 42, United States Code, Sections 1981, 1983 and 1985(3) and their jurisdictional counterpart Title 28, United States Code, Section 1343 and Title 28, United States Code, Section 1331, alleging that he was "suspended from his duties and pay as Professor at the Conservatorio de Musica de Puerto Rico effective on January 14, 1974" without a prior hearing and because he is a Negro and/or a State-side American in violation of his rights to due process of law and of the Equal Protection Clause of the Fourteenth Amendment respectively". A prayer is made for injunctive relief to stop defendants from unconstitutionally terminating plaintiff's employment, and for compensatory and punitive damages together with costs and reasonable attorney's fees.

The defendants have answered the complaint and argue that termination of plaintiff's employment without a prior hearing was carried out in accordance with the pertinent school regulations and therefore was legal. All allegations founded on discrimination have been denied.

The regulations governing disciplinary proceedings at the Conservatorio de Musica provide full due process protection for all employees prior to involuntary termination of employment — including a prior hearing upon request. Regulations, Section 4, Articles 6-11. However, the regulations also provide that a professor may be suspended without prior procedural guarantees if both the Dean of Administration and the Dean of Studies consider it advisable. Regulations, Article 14.

The defendants argue that application of Article 14 in plaintiff's case was proper because "no student wanted to enroll in the classes conducted by Professor King and the fact that the hearings on the charges would take more time, which would mean that there would be no teacher for percussion during the semester beginning in January, was sufficient cause to take the action of suspension". Defendants' memorandum of law, filed May 21, 1974, page 5.

The plaintiff has not challenged the facial constitutionality of the regulations governing disciplinary proceedings at the Conservatorio, and has indicated that the complaint is limited to an attack on the regulations as applied in order to obviate the need to convene a three judge court. However, the propriety of convening a three judge court to decide a constitutional challenge to a state statute or regulation when injunctive relief is sought depends on the substantiality of the federal question involved; a three judge court is required even if the constitutional attack — as here — is upon the regulation as applied. Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L.Ed. 505 (1974).

Constitutional insubstantiality for purposes of convening a three judge court has been equated with such concepts as "essentially fictitious", Bailey v. Patterson, 369 U.S. 31 at 33, 82 S.Ct. 549, 7 L.Ed.2d 512; "Wholly insubstantial" ibid; "obviously frivolous", Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482 (1910); and "obviously without merit", Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The question may be plainly insubstantial . . . because its unsoundness so clearly results from the previous decisions of the Supreme Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy. Hagans v. Levine, 415 U.S. 528, 94 S.Ct. 1372, 39 L. Ed.2d 577 (1974).

Indeed the present case presents an even stronger argument for procedural due process protection than was presented in Perry v. Sindermann, supra. Professor Sindermann, although lacking formal contractual or tenure security, was given an opportunity, on remand by the Supreme Court, "to prove the legitimacy of his claim of such entitlement to continued employment in light of `the policies and practices of the institution'". At page 603, of 408 U.S., at page 2700 of 92 S.Ct. Professor King, on the other hand, is a tenured professor — and we so find. The Supreme Court has held that "a public college professor dismissed from an office held under tenure provisions has an interest in continued employment that is safeguarded by due process, and which includes the right to a prior hearing." Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692.

In view of the foregoing, we find it unnecessary to convene a three judge court in the instant case. Plaintiff's right to a hearing prior to termination of his employment is so clearly settled as to leave no room for doubt as to its proper application here. Furthermore, and equally dispositive, no three judge court is required when the state statute or regulation under attack is not of statewide applicability. Souza v. Trevisono, 498 F.2d 1120 (1 Cir.) 1974. A school regulation — as here — not shown to apply to other than the particular institution involved can not be considered of statewide application for purposes of convening a three judge court. Marin v. University of Puerto Rico (D.C.P.R. 1972), 346 F.Supp. 470, citing Board of Regents of University of Texas System v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).

The defendants argue that plaintiff herein "has adequate legal and administrative remedies which he has not exhausted". Defendants' answer to the complaint, filed May 6, 1974, affirmative defense number 6. But a Section 1983 plaintiff is not...

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2 cases
  • Melanson v. Rantoul
    • United States
    • U.S. District Court — District of Rhode Island
    • October 19, 1976
    ...income. Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473 (E.D. Pa.1974). Similarly, in King v. Conservatorio de Musica de Puerto Rico, 378 F.Supp. 746 (D.P.R.1974), the defendant university was almost entirely subsidized by annual legislative appropriations. See also Ryan v......
  • Comtronics, Inc. v. Puerto Rico Tel. Co.
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 17, 1975
    ...Rico, 346 F.Supp. 470 (D.C.P.R.1972); Cordeco Development Corp. v. Vazquez, 354 F.Supp. 1355 (D.C.P.R.1972); King v. Conservatorio de Musica de P.R., 378 F.Supp. 746 (D.C.P.R.1974). Despite defendants' urging, we do not perceive that Calero-Toledo v. Pearson Yacht Leasing Co., supra, requir......

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