DAVIS v. BOARD OF SCHOOL TRUSTEES OF ANDERSON COMMUNITY SCHOOL CORPORATION et al

Filing 23

ORDER granting Defendants' 11 Motion for Summary Judgment. Signed by Judge Richard L. Young on 8/13/2014. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

PRISCILLA DAVIS,
Plaintiff,
vs.
BOARD OF SCHOOL TRUSTEES OF
ANDERSON COMMUNITY SCHOOL
CORPORATION, and
ANDERSON COMMUNITY SCHOOL
CORPORATION,
Defendants.

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1:14-cv-00279-RLY-DKL

ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff, Priscilla Davis, is a teacher employed by the Anderson Community
School Corporation (“ACSC”), located in Anderson, Indiana. Following the
recommendation by the Board of Review of the ACSC Peer Assistance and Review
(“PAR”) Program that Plaintiff’s Teacher Contract should be cancelled, Plaintiff brought
the present declaratory judgment action against the Defendants, the Board of School
Trustees of the ACSC and the ACSC (“School Board”), asking for a declaration that the
procedures stated in the ACSC’s PAR Guidelines violate the due process clauses of the
Indiana and United States Constitutions, and are void for vagueness under Article 1, § 12
of the Indiana Constitution, and that ACSC breached her Teacher’s Contract, the PAR
Guidelines, and her Contract with the Anderson Federation of Teachers (“Union
Contract”) by, inter alia, failing to give her the support necessary for her special needs
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classroom, failing to give her teaching/instructional materials necessary to properly
instruct her students, and by failing to give her a preparatory period and lunch period.
Defendants now move for summary judgment. For the reasons set forth below, the
Defendants’ motion is GRANTED.
I.

Factual Background
The facts in this case are undisputed, and center upon Plaintiff’s participation in

the PAR Program. The PAR Program is the product of an agreement between ACSC and
the Anderson Federation of Teachers, and establishes certain contractual procedures that
will be followed prior to a principal initiating the statutory contract cancellation process
due to inadequate teaching performance. (Defendants’ Ex. 1, Declaration of Eric
Creviston (“Creviston Dec.”) ¶ 24). It is also used as a means to evaluate first-year
teachers. (See PAR Handbook and Forms at 2-5).
The process begins for a “non-first year teacher” through a referral to the PAR
Program by the building Principal or the Teachers’ Union building committee. (Id. ¶ 29;
Defendants’ Ex. 3, PAR Handbook and Forms at 6). A consulting teacher is appointed to
observe the teacher, and prepares a report to the PAR Board of Review (or “Board”) of
his or her observations and recommendations. (Creviston Dec. ¶ 31; PAR Handbook and
Forms at 6). The Board of Review is a nine (9) member committee composed of four (4)
administrators appointed by the Superintendent and five (5) teachers appointed by the
President of the Teacher’s Union.
A teacher is placed in the PAR Program if the Board of Review, after considering
the consulting teacher’s report, determines the teacher should be placed in step one of the
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program, known as “Assistance.” (PAR Handbook and Forms at 6-10). If the teacher is
not successful in the Assistance step of PAR, the Board of Review places the teacher in
“Intervention.” (Id. at 11-16). After referral to the Intervention phase, a teacher has the
right to have an independent arbitrator review the process to determine whether all the
procedural steps in the PAR Guidelines had been complied with before placement in
Intervention. (Id. at 13 ¶ 1). If the arbitrator finds the procedural steps have been
properly followed, and the teacher is not successful in the Intervention phase, six (6) of
the nine (9) Board of Review members must affirmatively vote to make a
recommendation to ACSC to start the statutory teacher contract cancellation process
provided for in Title 20, Article 28, Chapter 7 of the Indiana Code. (Id. at 14 ¶ 1). This
statutory process may only begin when the Principal serves the teacher a written
preliminary decision of contract cancellation. (Creviston Dec. ¶ 22).
Plaintiff is a licensed teacher assigned to Eastside Elementary School, is a member
of the Anderson Federation of Teachers, and is employed subject to a Teacher’s Contract,
signed by Plaintiff and the ACSC. (Defendants’ Ex. 2, Plaintiff’s Teacher Contract). In
early February 2013, Plaintiff was referred to the PAR Program, and was assigned a
consulting teacher, Don Hartzell, who observed her on two (2) separate occasions.
(Creviston Dec. ¶¶ 30, 32; Defendants’ Ex. 5, Board of Review Report at 1). Mr.
Hartzell then prepared a report to the PAR Board of Review of his observations and
recommendations of Plaintiff. (Id. ¶ 33). Based on Mr. Hartzell’s report, the Board of
Review voted to assign Plaintiff to Intervention on September 24, 2013. (Defendants’
Ex. 17, Board of Review Report at 1). Plaintiff had an independent arbitrator review the
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process; the arbitrator found the process was consistent with the PAR Guidelines.
(Defendants’ Ex. 16, Board of Review Minutes at 1).
On November 8, 2013, Plaintiff was placed in the Intervention phase.
(Defendants’ Exs. 18-21, November-December 2013 Observation Reports). Mr. Hartzell
conducted four observations of her in November and December 2013. (Id.). Following
his observations, Mr. Hartzell prepared a report and met with the Board of Review to
assist it in determining the next step for Plaintiff. (Defendants’ Ex. 17, Board of Review
Report).
On January 15, 2014, the Board of Review voted 9-0 to recommend that ACSC
commence the statutory teacher contract cancellation process pursuant to Title 20, Article
28 of the Indiana Code. (Defendants’ Ex. 16, Board of Review Minutes at 3). The Board
notified Plaintiff of the decision by letter, placed her on administrative leave with pay,
and informed her of her right to appeal to the Board to reconsider its decision, which had
to have been filed in writing within five (5) days of receipt of the letter. (Defendants’ Ex.
22, Board of Review Written Notice at 1; Creviston Dec. ¶¶ 37-38). Following several
continuances, on the day her appeal was to proceed, February 19, 2014, the ACSC was
served with an Order on Plaintiff’s Motion for Emergency TRO and Preliminary
Injunctive Relief issued by the Madison Circuit Court, Division V, ordering that the
appeal hearing scheduled for that day be “continued until further order of this Court.”
(Defendants’ Ex. 23, State Court Order at 2; Creviston Dec. ¶ 44).
On February 25, 2014, Plaintiff’s case was removed to this court, and on July 9,
2014, the court dissolved the injunction issued by the Madison Circuit Court.
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II.

Summary Judgment Standard
Summary judgment is proper where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). Where, as here, the facts are not in dispute, the issue is one of law,
making summary disposition especially appropriate.
III.

Discussion
A.

Federal Constitutional Claims

The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person
of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV § 1.
In order to prevail on her procedural due process claim, Plaintiff must demonstrate: “(1) a
cognizable property interest; (2) a deprivation of that interest; and (3) a denial of due
process.” Price v. Bd. of Educ. of City of Chicago, 755 F.3d 605, 607 (7th Cir. 2014).
The threshold question under such an examination is whether a property interest actually
exists. Buttita v. City of Chicago, 9 F.3d 1198, 1201 (7th Cir. 1993). “Although the
Fourteenth Amendment protects property rights, it does not create them. Instead,
property rights ‘are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.’” Price, 755 F.3d at 607 (quoting Frey Corp. v. City of Peoria, 735 F.3d 505,
509-10 (7th Cir. 2013)). A property right in a benefit, such as continued employment,
“can arise from a statute, regulation, municipal ordinance, or an express or implied
contract. . . .” Id. (citing Covell v. Menkis, 595 F.3d 673, 675-76 (7th Cir. 2010)). A
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property interest exists in continued employment, for example, “when an employer’s
discretion is clearly limited so that the employee cannot be denied employment unless
specific conditions are met.” Buttita v. City of Chicago, 9 F.3d 1198, 1202 (7th Cir.
1993) (quoting Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 589 (7th Cir. 1992)).
Both parties agree that Plaintiff has a property right in continued employment with
ACSC, and that the source of that property right is found in Indiana’s Teacher Tenure
Act, Indiana Code § 20-28-7.5 et seq. The parties further agree that the procedures set
forth in that chapter provide constitutionally adequate due process. The disputed issue
here is whether Plaintiff’s property right in her continued employment extends to the
PAR process.
1.

Cancellation of her Teacher’s Contract

Plaintiff claims that, by virtue of her Teacher’s Contract, the Union’s Collective
Bargaining Agreement, and the Teacher Tenure Act, she has a legitimate claim of
entitlement to a due process hearing at the Board’s final evaluation hearing. The
“legitimate claim to entitlement” language was first introduced in Board of Regents of
State Colleges v. Roth, 408 U.S. 564 (1972), a case upon which Plaintiff relies. There,
the respondent was a first-year assistant professor at Wisconsin State University subject
to a contract for a fixed term of one academic year. Id. at 566. The president of the
university informed the respondent that he would not be re-hired for the upcoming
academic year, but provided no reason for the decision and no opportunity to challenge
the decision. Id. at 578. The Supreme Court found for the university, and held that the
respondent had no legitimate claim to entitlement to continued employment because the
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terms of his contract provided no interest in re-employment. Id. Accordingly, he was not
entitled to due process prior to the university’s decision.
Plaintiff also relies on Perry v. Sindermann, 408 U.S. 593 (1972), decided on the
same day as Roth. In Perry, the Board of Regents of one of the state colleges in Texas
decided not to renew the one-year teaching contract of one of its professors. Id. at 595.
Like the respondent in Roth, he argued he was entitled to be heard before the final
decision was made. Id. Citing to the college’s official “Faculty Guide” and the
Coordinating Board of the Texas College and University System’s guidelines, both of
which provided that respondent has some form of job tenure, the Supreme Court held:
The respondent has alleged the existence of rules and understandings,
promulgated and fostered by state officials, that may justify his legitimate
claim of entitlement to continued employment absent ‘sufficient cause.’ . . .
. [W]e agree that the respondent must be given the opportunity to prove the
legitimacy of his claim of such entitlement in light of ‘the policies and
practices of the institution.’ Proof of such a property interest would not, of
course, entitle him to reinstatement. But such proof would obligate college
officials to grant a hearing at his request, where he could be informed of the
grounds for his nonretention and challenge their sufficiency.
Id. at 603-04.
Neither Roth nor Perry is directly on point. The issue in those cases was whether
the petitioner had a legitimate expectation of continued employment, and if so, whether
some form of procedural process was due prior to the decision to terminate his
employment. Here, it is undisputed that Plaintiff has a right to continued employment,
Plaintiff’s employment contract has not been terminated, and that she has a due process
right, provided for in the Teacher Tenure Act, to be heard prior to a final decision by the
School Board. There is nothing in either Roth nor Perry supporting Plaintiff’s argument
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that “statutes and rules that already provide teachers due process – including customs –
can be a basis for the expectation for further process,” particularly where, as here, the
Board of Review made a recommendation – not a final decision – to the ACSC to cancel
her Teacher’s Contract. Accordingly, Plaintiff did not have a legitimate claim of
entitlement to notice and an opportunity to be heard at the Board of Review’s evaluation
meeting.
Lastly, Plaintiff relies on Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532
(1985) for the proposition that the PAR Program is susceptible to “minimum procedural
requirements” under federal constitutional law, notwithstanding the Teacher Tenure Act.
The Supreme Court’s discussion of “minimum procedural requirements” arose from the
fact that the Cleveland Board of Education terminated the petitioner from his position as
a security guard, but the Ohio statute which pertained to his employment did not provide
him with an opportunity to respond to the Board prior to termination. Id. at 536. The
Supreme Court held that, even though the state statute that created the petitioner’s
property right to continued employment also specified the procedures for discharge, the
Due Process Clause demanded more. Id. at 541-42. “[W]e pointed out that “minimum
[procedural] requirements [are] a matter of federal law, they are not diminished by the
fact that the State may have specified its own procedures that it may deem adequate for
determining the preconditions to adverse official action.” Id. at 541 (quoting Vitek v.
Jones, 445 U.S. 480, 491 (1980)).
As noted previously, Plaintiff agrees that procedures under the Teacher Tenure
Act satisfy the constitutional requirement of due process. Therefore, the “minimum
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requirements” language from Loudermill is inapplicable and provides no support for her
contention that the PAR Program – a set of contractual procedures for evaluations and for
providing recommendations prior to potentially proceeding under the Teacher Tenure Act
– contains certain procedural due process guarantees. Because Plaintiff’s property
interest in her continued employment has not been terminated and ACSC has not begun
the process to terminate her employment, Plaintiff’s due process challenge to the Board
of Review’s recommendation is without merit.
2.

Suspension with Pay

Plaintiff argues that she was entitled to notice and an opportunity to be heard prior
to the Board of Review’s decision to suspend her with pay. It is well-settled that a
suspension with pay does not constitute the deprivation of a property right subject to
federal constitutional protections. Townsend v. Vallas, 256 F.3d 661, 676 (7th Cir. 2001)
(finding that, even if a tenured teacher’s temporary reassignment was tantamount to a
suspension, “under existing law, a suspension with pay would not constitute the
deprivation of a property right subject to federal constitutional protections”) (citing
Gilbert v. Homar, 520 U.S. 924, 935 (1997) (finding that petitioner, who was suspended
without pay following his arrest, was entitled only to prompt post-suspension hearing);
Loudermill, 470 U.S. at 544-45 (1985) (finding that, “in those situations where the
employer perceives a significant hazard in keeping the employee on the job, it can avoid
the problem by suspending with pay”); Levenstein v. Salafsky, 164 F.3d 345, 351 (7th
Cir. 1998) (“Levenstein is not arguing that the initial act of suspending him with pay
violated any constitutional right, and he is wise not to do so . . . .”); Crim v. Bd. of Educ.
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of Cairo Sch. Dist. No. 1, 147 F.3d 535, 546-47 & n. 25 (7th Cir. 1998) (“We explained
that he would have had a due process claim if he had been suspended without full pay
. . . .”). Accordingly, Plaintiff’s due process challenge to the Board of Review’s decision
to suspend her with pay is dismissed.
B.

State Constitutional Claims

Plaintiff’s federal constitutional claims having been dismissed, the court must next
determine whether to take supplemental jurisdiction over Plaintiff’s state law claims
under 28 U.S.C. § 1367. That determination turns on whether the state law claims are
“so closely related to the plaintiff’s federal-law claims as to be in effect part of the same
case.” Williams Elec. Games, Inc. v. Garrity, 479 F.3d 904, 906 (7th Cir. 2007). Here,
Plaintiff’s state law constitutional and breach of contract claims arise out of the same set
of facts as her federal constitutional claims. Therefore, the court elects to take
supplemental jurisdiction over those claims.
1.

Indiana Due Course of Law Claim

Plaintiff brings a due course of law claim under Article 1, Section 12 of the
Indiana Constitution. That section provides, in relevant part: “All courts shall be open;
and every person, for injury done to him in his person, property, or reputation, shall have
remedy by due course of law.” Indiana’s Due Course of Law requirement is analogous to
the Due Process Clause of the Fourteenth Amendment, and thus, the two provisions are
analyzed the same. See Lake of the Woods v. Ralston, 748 N.E.2d 396, 400, n. 1 (Ind. Ct.
App. 2001) (“[T]he Due Course of Law requirement of Article 1, Section 12 of the
Indiana Constitution is analogous to the Due Process Clause of the Fourteenth
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Amendment to the Federal Constitution.”). Accordingly, for the reasons articulated in
the previous sections, Plaintiff’s due course of law claim must be dismissed, and
Plaintiff’s void for vagueness challenge must also be dismissed.
2.

Void for Vagueness

Plaintiff alleges that the PAR Program procedures are unconstitutionally vague
under Article 1, Section 12 of the Indiana Constitution “in that they fail to specify in full
detail the procedures and practices of who can actually suspend a teacher at ACS[C]
when that teacher is in PAR.” (Am. Compl. ¶ 36(c)). Defendants argue, without citation
to authority, that the PAR Guidelines “do not confer any constitutional rights,” and thus,
the claim must be dismissed. Plaintiff did not respond to this argument.
The void-for-vagueness doctrine applies generally to penal statutes, and requires
that those statutes be written “with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983)
(citation omitted); see also Wells v. State, 848 N.E.2d 1133, 1145 n.6 (Ind. Ct. App.
2006) (“Indiana courts have reviewed claims of unconstitutional vagueness in the same
manner, whether the defendant invokes the United States Constitution, the Indiana
Constitution, or both.”) (citing Bemis v. State, 652 N.E.2d 89, 92 (Ind. Ct. App. 1995)).
“A statute is not void for vagueness if individuals of ordinary intelligence would
comprehend it to fairly inform them of the generally proscribed conduct.” Helton v.
State, 624 N.E.2d 499, 505-06 (Ind.Ct. App. 1993) (citing Broadrick v. Oklahoma, 413
U.S. 601, 607-08 (1973)).
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Plaintiff’s challenge fails for two reasons. First, the PAR Guidelines are not
analogous to a penal statute. The PAR Program is simply an evaluation tool, and the
guidelines outline the procedural steps involved in that process. Second, Plaintiff’s
challenge is not one of vagueness; rather, her challenge is simply that the Board of
Review did not have the authority1 to suspend her with pay.
3.

Breach of Contract

Finally, Plaintiff alleges Defendants breached her Teacher’s Contract, her Union
Contract, and the PAR Program Guidelines by: (1) failing to give her the support
necessary for her special needs classroom, (2) failing to give her teaching/instructional
materials necessary to properly instruct her students, (3) failing to give her a preparatory
period, (4) failing to give her a lunch period, and (5) not allowing her any continuing
education assistance with meaningful courses. (Am. Compl. ¶ 36(d)(1)-(5)). She further
alleges that these violations adversely affected her teaching performance, and were used
as a pretext to terminate her Teaching Contract. (Id. ¶ 36(e)). “In other words, and in
simpler terms, the detriments caused by the school system are now being used against
[Plaintiff].” (Id.).
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Plaintiff’s challenge does give the court pause. The PAR Guidelines do not explicitly
state that the Board of Review has the power to temporarily suspend a teacher with or without
pay. The court’s research reflects that a school board has the authority to temporarily suspend a
teacher during the contract cancellation process, IND. CODE § 20-28-7.5-4, and in appropriate
circumstances, Board of Trustees of Hamilton Heights School Corp. v. Landry, 560 N.E.2d 102,
105-07 (Ind. Ct. App. 1990). However, no Indiana case has addressed whether an administrative
body like the Board of Review has that authority. Whether it has that authority is an issue that
the Board of Review may need to address. See Wynn v. Bd. of Educ. of School Dist. No. 159,
815 F.Supp.2d 1007, 1013 (N.D. Ill. 2011) (“When a school board takes an action that is
prohibited by law or otherwise beyond the board’s lawful authority, that action is ultra vires and
void.”).

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Defendants maintain that Plaintiff does not allege an independent claim for breach
of contract; rather, her allegations are limited to supporting her due process claims. The
court does not agree, as her claim may be interpreted in one of two ways. First,
Plaintiff’s claim may be interpreted as a breach of contract claim. Plaintiff testified by
affidavit that she was denied the five (5) items/benefits listed above. (Plaintiff’s Ex. 1,
Affidavit of Priscilla Davis ¶ 31(a)-(e)). In addition, Plaintiff’s Union Contract
guaranteed the right to a duty-free thirty (30)- minute lunch period and a duty-free fortyfive (45)-minute preparation period. (Plaintiff’s Am. Compl., Ex. 5, Union Contract at
31-32). The problem here is that Plaintiff specifically states in her Response that she is
not seeking “monetary damages – only a determination from a state court that [ACSC]
did not follow her contract and union contract, and this breach caused an impact in her
classroom.” (Resp. Br. At 27). In Indiana, an essential element of a claim for breach of
contract is damages. Corry v. Jahn, 972 N.E.2d 907, 913 (Ind. Ct. App. 2012).
Plaintiff’s statement that she is not seeking damages is fatal to her claim.
Second, Plaintiff’s claim may be interpreted as a means to argue that she should
have been allowed to attend the Board’s final evaluation hearing and to speak in her
defense, and that the Board’s decision to suspend her with pay violated due process.
(See, e.g. Plaintiff’s Response at 29 (“[I]t just makes good sense that procedural due
process must attach to any stage of the suspension/termination process, otherwise, ACS,
cities, counties, states, local government bodies and other school boards are completely
free to devise BOR [Board of Review]-like procedures that, in turn, immunize state

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actors from the reach of the 14th Amendment.”). The court’s position on that issue has
already been decided.
IV.

Conclusion
Defendants’ Motion for Summary Judgment (Filing No. 11) is GRANTED.

SO ORDERED this 13th day of August 2014.
s/ Richard L. Young_______________
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States YOUNG,Court JUDGE
RICHARD L. District CHIEF
Southern District of Indiana
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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