BOARD OF EDUCATION v. VAIL

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ORAL ARGUMENT OF THOMAS REED MILLER, ESQ., ON BEHALF OF PETITIONERS

Chief Justice Warren E. Burger: We will hear arguments first this morning in Board of Education of Paris Union School District against Vail.

Mr. Miller, you may proceed when you're ready.

Thomas Reed Miller: Mr. Chief Justice, may it please the Court:

This case concerns an action brought by an Illinois public school teacher against its employer, the board of education, pursuant to U.S. Code Section 1983.

More specifically, in final analysis this is a breach of contract case in which both the district court and the Court of Appeals for the Seventh Circuit in a two to one decision agreed that the public school teacher had a property right protected by the United States Constitution to continued employment, which was deprived of him when the board of education did not renew his probationary contract and did not provide to him reasons for nonrenewal, nor a hearing prior to that termination.

Now, this case arises within a statutory framework called the Illinois tenure scheme, and I think because of its bearing on the case I would like to spend a few moments to elaborate in regard to that particular statutory scheme.

Illinois, like many states, has a statutory tenure scheme which applies to public school teachers.

Specifically, in Illinois the tenure act is found in Sections 24-11 and 24-12 of the Illinois School Code.

For the Court's identification, these statutory provisions are set forth at pages 56 through 61 of the appendix to the petition for writ of certiorari.

In essence, the statutory scheme provides as follows: A public school teacher who is employed for two consecutive years in full-time service, that being the probationary period, acquires what we call tenure, contractual continued service in the State of Illinois.

Once the teacher acquires tenure, a teacher cannot be dismissed for other than cause and only after a rather elaborate procedural process has taken place.

To the contrary, the nonrenewal of a probationary teacher, whether it be a first year probationary teacher or a second year probationary teacher, is a rather simple procedure.

The first year probationary teacher is entitled to nothing more than notice of nonrenewal to be given to that person at least 60 days before the end of the current school term.

For a second year probationary teacher, a notice of nonrenewal must contain the reason or reasons for the nonrenewal.

There are no express provisions found in Section 24-11 dealing with the termination of a probationary teacher in the current contract term.

It should be noted that another provision of the Illinois School Code, that being Section 10-22.4, empowers a board of education in Illinois to dismiss teachers, whether they be probationary or tenured teachers, for the following reasons: incompetency, cruelty, negligence, immorality, or other sufficient cause, and, important to this case, whenever in the opinion of the board of education the interests of the school require the dismissal.

It is, as I have suggested, within this statutory framework that the facts of this case came to pass.

Unidentified Justice: Could the board dismiss in the middle of the first year for no cause?

Thomas Reed Miller: In my judgment, yes, it could.

And the reason I say that is because whenever the interests of the school requires the dismissal means to me that the board can dismiss for any reason or no reason.

Unidentified Justice: Well, I would think you would apply to a tenured teacher.

Thomas Reed Miller: It would, except for the statutory provision found in Section 24.12 which specifically says that a tenured teacher must be dismissed for specific cause.

Unidentified Justice: Well then, what about the provision that says you may dismiss a probationary teacher if you give him 60 days notice before the end of his first year?

Thomas Reed Miller: That provision, of course, I think has been interpreted to mean the nonrenewal aspect of a probationary teacher's contract.

In other words, that person will serve out that first year and his contract will not be renewed for a second year.

Under the statutory scheme, unless that nonrenewal notice is given the teacher is automatically re-employed for the second year.

Unidentified Justice: Right.

But that notice is just notice and not any sort of a hearing.

Thomas Reed Miller: That's correct, Justice Rehnquist.

Unidentified Justice: Am I correct in recalling that none of the three judges on the Court of Appeals agreed with your analysis of state law?

Thomas Reed Miller: I think that can be gleaned from the fact that the dissenting justice did not discuss that in his dissent.

Unidentified Justice: He assumed there was some kind of a contractual right?

Thomas Reed Miller: That's correct.

The district court, after a bench trial, made the following findings which are pertinent to this case:

First of all, that the Respondent teacher had executed a one-year employment contract with the board of education.

Secondly, that a consensus of the board of education, a consensus of the board, had promised, and made the promise through an oral representation of the superintendent to the teacher, that his contract would be renewed at the end of the first contract year.

And that representation was made at the time of initial employment.

It was not made at the end of the first contract year.

Rather, it was made at the time of initial employment.

The Respondent relied in part upon this representation, as evidenced by the fact that he left his job in Joliet, Illinois, and moved to Paris, Illinois, to assume his coaching and administrative responsibilities.

Another finding was that the Petitioners in fact did notify the Respondent on March the 3rd, 1981, that his contract would not be renewed, and that renewal without more did meet the strict requirements of the probationary nonrenewal notice provisions of the school code.

The Respondent was given no reasons for his nonrenewal and, furthermore and finally, the Respondent was not given a pre-termination hearing.

As a matter of fact, he was not given a hearing by the board of education at all in this matter.

He did in fact bring suit in the federal district court a little more than a month after the notice of nonrenewal was given.

Unidentified Justice: You have said you were commenting on the district court's findings.

I take it now you're going to kind of a narrative account of what happened?

Thomas Reed Miller: Yes.

In addition to the findings made by the district court, the district court also made certain conclusions of law, which I think are important also.

The district court concluded that on the basis of the representation that was made at the time of employment that the board of education had bound itself to a two-year term contract with the Respondent teacher, and that this contract was enforceable under Illinois law, that being a one-year term written contract followed by a one-year implied promise or oral contract for the second year.

That was as a matter of finding enforceable under Illinois law.

The second finding or conclusion of law was that that two-year employment contract was property within the meaning of Section 1983.

Unidentified Justice: Do you disagree with that first finding or conclusion of law by the district court?

Thomas Reed Miller: I do, and I will address that.

Unidentified Justice: You have a fairly tough row to hoe in this Court, I suppose you realize, because, you know, the district judge is obviously formerly an Illinois lawyer and three judges of the Court of Appeals did not take issue with that finding.

Thomas Reed Miller: This is true, except I think that this Court has the opportunity to take a look at Illinois law in this case because of the fact that not one Illinois court has ever interpreted this particular provision, that being Section 24-11.

It has never been required to interpret that.

Unidentified Justice: Do you really think that's why we would grant certiorari in a case like this, in order to look at Illinois law and see if it were properly applied by a district court and affirmed by a Court of Appeals?

Thomas Reed Miller: I think that the state law issue certainly does come into play when we get into--

Unidentified Justice: You certainly don't need to win on that to win this case, do you?

Thomas Reed Miller: --No, I don't believe I do.

But I think that the state law issue comes into play quite significantly when we talk about the property right, because as we know from this Court's prior decisions, property rights, particularly property rights in employment, are created by state law and not the Constitution.

And I realize that I have a tough row to hoe when it comes to this Court looking at state law.

But this is one of the points that we have raised, and we think that if the Illinois Supreme Court had been given the opportunity, had this case been filed in the state court system, that it would have held that Section 24-11 does not allow for more than two successive one-year term contracts.

And we say that primarily on the strength that under Illinois law public entities have only those powers that are granted to them by the state legislature.

Unidentified Justice: Well, Mr. Miller, what if the board had given Vail the initial one-year contract, but at the same time had given him the statutory notice that he'd be re-employed for another year at the end of the first year?

Wouldn't that have given him a valid two-year contract?

Thomas Reed Miller: Justice O'Connor, there is no statutory requirement that notice be given to the first year probationary teacher that his employment would be renewed.

Unidentified Justice: Well, the point is just that it doesn't seem inconsistent with the provisions of the statute as they're set out.

So I think the argument that they can't have a two-year contract is essentially a weak one.

Thomas Reed Miller: Well, the history of the Illinois Supreme Court in interpreting the tenure provisions has been that the court has strictly construed those provisions dealing with nontenured teachers and in fact has given a tremendous amount of flexibility to boards of education in dealing with the nontenured teachers.

Unidentified Justice: Mr. Miller, you've used up more than a third of your time and you haven't really gotten to the heart of your case yet.

Thomas Reed Miller: As I would suggest to the Court, there are four points on which I think this Court can reverse this case.

The first we have discussed.

I will move on again into the other points.

The second is that under the Illinois statutory scheme a probationary contract is not a property interest within the meaning of the Constitution and Section 1983, and I say that because there is no for-cause standard for discharge found in Section 10-22.4, that being the statutory provision that sets forth when a board can or what a board can dismiss a teacher for.

It is our reading of this Court's cases, Both and Bishop, that a for-cause standard is necessary within the statutory framework to create the kind of property interest which is protected by the Constitution.

Unidentified Justice: This is only slightly different from your first argument, it seems to me, because you're really saying that if he had sued in state court he would be met with your point that there was no breach of contract because we can fire for no cause at all.

Thomas Reed Miller: That's correct.

Unidentified Justice: And that seems to me to be contrary to the state law finding by the district judge and the Court of Appeals.

Thomas Reed Miller: I separate the issue of whether you can have a two-year contract--

Unidentified Justice: I know you're talking about it in two different paragraphs, but it sounds like almost the same argument.

But go ahead.

Thomas Reed Miller: --Well, the important point here I think is that this Court's decisions place a great deal of importance on state law interpretation, and in this case we have not had the benefit of that analysis because we have not had a state court, whether it be an appellate court or the supreme court, address either the issue of the legality of a two-year term probationary contract nor whether, if that is authorized, that term contract constitutes property within the meaning of the Constitution.

And if I read this Court's decisions correctly, it's that state court determination that this Court must rely on in regard to the judgmental call as to whether a property interest is involved in this case.

The third point which I wish to address is that, even if there is a property interest under state law, there has been no deprivation of a right secured by the Constitution.

I say that because the Respondent's remedy in this case is for money damages.

Under Illinois law the Respondent has no right to specific performance.

He has a right to recover lost pay if he is successful in his litigation.

We suggest that there has been no final deprivation of a right in this case because of the fact that until or unless the state would foreclose his opportunity to bring suit in the state courts to seek redress, that being for money damages, there has been no deprivation.

Another point which I wish to make--

Unidentified Justice: Would you feel differently about that if the contract were specifically enforceable under Illinois law?

Would you think then it would constitute property?

Thomas Reed Miller: --That would be akin to the provisions in Section 24-12 which allow for reinstatement of a tenured teacher who would be discharged and found that the discharge was not appropriate.

Unidentified Justice: Would that be a protectable property interest?

Thomas Reed Miller: In my judgment it would be.

Unidentified Justice: Let me ask you about your deprivation argument.

If you assume he had a contract right and pursuant to that contract he was getting a check every week or every month or whatever it was, and then the board took action and he stopped getting that check and nobody else did anything after that, you say he's not been deprived of anything.

He's just not getting the money any more.

Thomas Reed Miller: That's our analysis of the deprivation issue, is that his deprivation takes place if the state were to foreclose him from bringing an action for the collection of that salary that is due him in a breach of contract case.

Unidentified Justice: That sounds more like an argument that he's got adequate process available.

It seems to me when he stops getting his money there's been a deprivation.

I don't quite understand how you can say that's not a deprivation.

Nobody does anything after that.

It's a rather dramatic change in circumstances.

Thomas Reed Miller: I must grant that the deprivation concept dovetails into the due process analysis also, because one of the tests that this Court has set forth when you must determine whether there has been a violation of due process or due process without law is if the deprivation is final.

And that brings me to my final point which I care to make.

I think that on the strength of the Perry case and the Logan case decided by this Court that the Respondent Vail clearly has an adequate state law remedy.

He has a common law remedy in the state courts for breach of contract.

And as I read the Logan case, if that common law remedy will make the Respondent whole, which it would in this case because under Illinois law he is only entitled to money damages, then the state law remedy is adequate and there has been no due process violation.

Unidentified Justice: You're saying that if they notified him that he was terminated, he was being terminated, and said, if you have any objection to this we'd be glad to give you a hearing in the local courts, we will be glad to litigate with you in the local courts, you think that is a satisfactory enough provision for a hearing?

Thomas Reed Miller: I do, because of the fact that under our law, as I've stated, he has no right to specific performance.

Unidentified Justice: When was his notice given?

Thomas Reed Miller: Notice was given on March 3rd.

Unidentified Justice: How far before the end of the school year?

60 days?

Thomas Reed Miller: Yes.

The effective date of his contract... the termination date was, as I recall, June the 15th.

Unidentified Justice: Well, he then knew he was terminated.

Thomas Reed Miller: Yes.

Unidentified Justice: He could have, I suppose, brought suit in the state court right then, and I suppose, although you perhaps don't get specific performance, could the local courts... suppose they didn't get around to trying the case until after June.

Could they have enjoined his discharge pending outcome of the suit?

Thomas Reed Miller: The notice that terminated his services said that the effective date was June the 15th.

Unidentified Justice: Well, so he had 60 days to bring the suit.

Thomas Reed Miller: Yes, he did.

He completed that year of employment.

He was not terminated on the spot.

So yes, he could have brought the suit, but no, the Illinois state court would not have enjoined the board of education.

Unidentified Justice: You mean they couldn't have enjoined the board of education?

Thomas Reed Miller: That's correct, because under Illinois law he has an adequate remedy for damages, and that is the appropriate remedy for a breach of contract.

Unidentified Justice: And the only remedy of a probationary teacher, you say?

Thomas Reed Miller: Yes, sir.

I will reserve the time I have remaining.

Unidentified Justice: You never got around to your fourth point, did you?

Thomas Reed Miller: My fourth point, Justice White, was a combination of the deprivation and due process analysis and, as I've suggested to the Court, because of the state law remedy there has been no denial of due process without law.

Chief Justice Warren E. Burger: Mr. Ansel.

ORAL ARGUMENT OF MARC J. ANSEL, ESQ. ON BEHALF OF RESPONDENT

Marc J. Ansel: Mr. Chief Justice and may it please the Court:

The issue in this case is whether or not an employee of state government who is discharged in the middle of his term without reasons or an explanation is entitled to those reasons and an opportunity to respond at a meaningful time and in a meaningful manner.

The Petitioners' argument in this case reduces to two basic propositions: Number one, there is no federal claim because there is no state claim; number two, there is no federal claim because there is a state claim.

This inherent inconsistency in the argument provides no help in balancing the many interests that have to be weighed in a due process analysis.

Unidentified Justice: Mr. Ansel, what elements of your client's case other than the final constitutional framing of it come from any place other than Illinois law?

Marc J. Ansel: In fact, none of the elements of the protectable interest come from any place but Illinois law.

Unidentified Justice: So it's really a diversity case without diversity.

Marc J. Ansel: Well, it is more than a diversity case, only because of the question of whether he was entitled to a hearing or some type of pre-deprivation process under the Constitution.

That is what changes it and that question is not a question of Illinois contract law.

This is a constitutional question.

Unidentified Justice: But all of the analysis that goes into deciding whether he has what you refer to as a protectable property interest depends entirely on Illinois contract law, doesn't it?

Marc J. Ansel: I think for the purposes of this case I can rely on the findings of the two lower courts and say that it does, because that is all that is necessary to reach the heart of this case, which is what process is actually due, given a protectable interest.

This case involves a claim against a school district, which is a government employer, and in the case the Respondent proved an explicit commitment from the highest governing authorities and a breach of that commitment.

This could be termed, and it has been termed, a squabble between a teacher and a school board in the dissent below.

But in constitutional terms, this epitomizes the arbitrary actions that are occasionally committed by state government without any adequate remedy.

Unidentified Justice: Well, Mr. Ansel, do you agree that the only remedy provided under Illinois law for a breach is a damages action--

Marc J. Ansel: That is correct.

Unidentified Justice: --for a non-tenured teacher?

Marc J. Ansel: That is the only remedy provided by Illinois law.

Unidentified Justice: And you also agree that Illinois law did not provide for a hearing before the notice of termination as a matter of state law?

Marc J. Ansel: That is correct.

Unidentified Justice: Do you think that that affects the reasonableness of the reliance by a probationary teacher on those processes?

In other words, why would a probationary teacher have a right to expect more than the Illinois law provided in that regard?

Marc J. Ansel: I think that the absence of an explicit provision in Illinois law for a hearing does not mean that a hearing could not be provided.

But the constitutional question is whether or not a deprivation in the middle of a term where there is an expectancy remaining invokes the constitutional right to a pre-deprivation hearing.

Unidentified Justice: Well, isn't it possible at least that the notion of a property interest protectable under the Fourteenth Amendment should turn at least in part on the reasonableness of the owner's reliance on whatever entitlement he has?

Marc J. Ansel: Yes, I think it should, and in this case the reliance, based on every fact in the record, would be a reasonable reliance.

Unidentified Justice: Well, but if under state law he's not entitled to a hearing, why is it reasonable to expect it?

Marc J. Ansel: It's reasonable to expect a hearing because hearings are provided for all teachers that are terminated in the middle of their terms, because cause is an element of that termination.

The Petitioner, when he indicated those reasons that could constitute termination in the middle of a term, even a reason as amorphous as the interests of the district, still is sufficient to generate a cause requirement.

Unidentified Justice: Well, you're arguing that as a matter of constitutional law that's so, but certainly not as a matter of state law.

Marc J. Ansel: That is correct.

I think that the cases in this Court have indicated that if somebody is provided with a protectable interest as determined by reference to state law the question of whether the procedures are sufficient to deprive them of that interest is a constitutional question.

This was most recently stated in the Logan case.

Unidentified Justice: Mr. Ansel, a moment ago you said that Illinois gave no adequate remedy to your client.

Would your client have had a damages remedy under Illinois law?

Marc J. Ansel: I believe that he would have had a damages remedy under Illinois law.

Unidentified Justice: Well, since that's all that the district court gave him, was damages, why wasn't his remedy under Illinois law every bit as adequate as it was in the district court?

Marc J. Ansel: I think our choice not to appeal the award of damages for failure to provide additional elements should not be taken as an indication by us that those are adequate.

Unidentified Justice: So really you feel your remedy in the district court wasn't adequate either?

Marc J. Ansel: I think that that is true, and the reason is more complicated than might first appear.

The first reason is, by the time the case was able to be brought to trial even in the federal court and by the time the evidence was able to be generated with the help of judicial process, the interest that he had remaining in one additional year's employment had for all practical purposes dissipated.

He had begun to look for other work.

They had already hired another employee.

But this case is limited to those circumstances because the interest remaining at the time was only one year, and the realities of litigation even in federal court are such that it's sometimes impossible to obtain complete restoration of what is lost when that deprivation takes place.

Unidentified Justice: If damages is all he could get, I suppose any public employer can illegally fire a person, can fire a person in breach of contract.

But the person has only, if he's a probationary teacher, has only a damages remedy--

Marc J. Ansel: Well, I think that--

Unidentified Justice: --isn't that right?

I take it you conceded that.

Marc J. Ansel: --No, I do not concede that compensatory damages in a breach of contract claim are an adequate remedy.

Unidentified Justice: Well, I know, but how about under Illinois law?

He gets only damages, doesn't he?

Marc J. Ansel: That is correct, but I do not concede that that is adequate.

Unidentified Justice: You mean the Constitution requires more?

Marc J. Ansel: I think that the Constitution requires more in terms of the deprivation process, because the remedy is so inadequate under Illinois law.

I'm not saying that the Constitution requires Illinois common law to provide additional remedies.

I think the constitutional analysis requires an evaluation of those remedies and the question of whether or not they are adequate is significant to due process analysis.

It is significant because it has a direct bearing on the value of any additional safeguards that would be provided in the due process procedure.

Unidentified Justice: Are you contending he had a federal constitutional right to reinstatement?

Marc J. Ansel: I'm contending that, if he had a protectable interest, the Civil Rights Act does provide that as one remedy.

Unidentified Justice: Well, I understand that, but that's not my question.

Illinois law provides only a damage remedy and that's all he recovered here.

Do you contend that as a matter under the Fourteenth Amendment... assume you had a clear contractual right as a matter of Illinois law... that you had a federal constitutional right to get your job back?

Marc J. Ansel: I am not contending that there's a federal constitutional right to get the job back.

But I am contending that the Civil Rights Act, which is the implementing statute of the Fourteenth Amendment, has extended the power to the federal courts to provide these additional remedies when they are not available in state court.

Unidentified Justice: I thought your argument at least was, one of your arguments was, that until he had a pre-deprivation hearing he was entitled to stay on the job.

Marc J. Ansel: I think that is my argument.

Unidentified Justice: And that on that basis if they'd have given him a pre-deprivation hearing they would have to at the end of that hearing have complied with Illinois law, and he may have stayed on the job throughout his second year.

Marc J. Ansel: I am not contending that the reinstatement remedy alone would provide him with due process.

Unidentified Justice: But you say he was entitled to stay on the job and receive his weekly pay or monthly pay until they give him a hearing.

Marc J. Ansel: That is correct.

Unidentified Justice: I gather he lost his job by a 3-2 vote, didn't he?

Marc J. Ansel: I think that that was the vote when he was terminated.

Unidentified Justice: And I take it your position is that if he had a hearing the 3-2 might have come out the other way?

Marc J. Ansel: That is in my opinion the very essence of procedural process.

That is--

Unidentified Justice: And then he would not have lost his job at all.

Marc J. Ansel: --That is correct.

The opportunity to respond after being provided with reasons could generate the opportunity to change one board member's mind.

And the real loss that comes from the deprivation of employment--

Unidentified Justice: Now, tell us again, where does that right to a hearing come from?

The state law doesn't provide for it.

Marc J. Ansel: --The right to a hearing comes from the Civil Rights Act if state law provides a protectable interest.

If state law provides a protectable interest, which the Court of Appeals and the trial court both found in this case, whether state process is adequate is a question of constitutional law.

This was one of the statements in the Logan case.

Otherwise, if the only process due was that process provided by Illinois law, the states would be able by means of state legislation to destroy any legitimately created claim by simply providing and limiting the process in its statutes.

Unidentified Justice: Well, you had 60 days to bring a suit in state court before the termination of his first year.

Marc J. Ansel: We did bring suit within 60 days.

Unidentified Justice: In the state court?

Marc J. Ansel: No, sir.

We brought suit in the federal court.

Unidentified Justice: Well, I know.

But you could have brought it in the state court, and you could have... and you said you had some sort of a remedy.

Marc J. Ansel: The only remedy--

Unidentified Justice: How do you know what... you might have been able to get an injunction.

Marc J. Ansel: --I don't think there is any authority in Illinois law for an injunction under these circumstances.

I agree with Petitioners in that situation.

Unidentified Justice: No, but you could have brought your 1983 suit in the state courts, couldn't you?

Marc J. Ansel: Yes, I could have brought my 1983--

Unidentified Justice: And then I take it the state court would have to apply federal law, wouldn't it?

Marc J. Ansel: --That is correct.

Unidentified Justice: And if federal law entitled you to an injunction you might have gotten it.

Marc J. Ansel: That is correct.

Unidentified Justice: Even though if you had a count for a state remedy you can only get damages.

Marc J. Ansel: That is correct.

We could have raised the federal questions in state court, and that would have empowered the state court to provide the additional relief that was available under the Civil Rights Act.

However, the grant of jurisdiction and authority is such that we would be permitted to go directly to federal court, and I think to have had a trial under the circumstances of this firing in Edgar County, Illinois, in Paris, Illinois, would have raised serious questions of whether or not this claimant would have been able to receive the real process that he might be do.

Unidentified Justice: You might have faced a malpractice suit.

Marc J. Ansel: Among other things, I might have faced a malpractice suit, that is true.

Unidentified Justice: Why would Edgar County be so unsympathetic when all of your substantive rights are based on Illinois law?

I mean, are you saying Illinois jurors wouldn't enforce Illinois law?

Marc J. Ansel: I am saying that there is a real question, when you get into litigation in the state courts, of all of the vagaries of the statute of frauds and parole evidence and even findings of fact and statements made in the record, and I believe that one of the purposes of allowing dual jurisdiction in the case of civil rights is to be able to avoid some of the passion and personal prejudice that might exist in state courts.

Unidentified Justice: That reason has certainly been traditionally advanced, the idea being that federal courts may be more sympathetic to federal law claims.

But here your claim derives almost entirely from Illinois statute, Illinois case law.

Marc J. Ansel: In fact, the only thing that arises from Illinois case law is the interest or the claim of entitlement that we seek to protect in this case.

The procedures that are not provided by Illinois law, which we believe are required by the Constitution and authorized by the Civil Rights Act, are procedures that would make up for the inadequacy in Illinois law.

So we do start--

Unidentified Justice: Well, of course you say Illinois law is inadequate, but in a sense Illinois is perfectly capable of defining its rights and assigning what procedures all he available to enforce them, isn't it?

Marc J. Ansel: --Yes, they are, but the question of adequacy of those procedures is one of constitutional dimensions.

At least it has been so held by the Court.

Unidentified Justice: Recently.

Marc J. Ansel: Yes, sir.

In fact, the adequacy of remedy--

Unidentified Justice: Do you rely on Logan for that purpose?

Marc J. Ansel: --That is Logan.

The adequacy of the remedy provided post-deprivation requires an analysis of what process is available and what process is feasible at different points in time during the deprivation process, and at what cost.

This is simply another way of stating the four elements of due process analysis that were identified in Mathews and Eldridge and used most recently in Logan.

If the post-deprivation remedies in this case were truly complete, that is, if the claimant could have restored to him all that would be lost in the initial deprivation, then the deprivation might not be deemed final, in that he could literally have restored what was taken away.

But when that interest is something more than a hobby kit or an item of tangible property, when that interest is one of employment, it is not so easy of analysis to say what is a complete remedy.

When somebody is deprived of the opportunity to work, the deprivation and the loss can never be made complete.

The longer the person stays off the job, particularly if he doesn't keep receiving his salary, if it has a blot on his employment record, if it takes away his opportunity to work and generate a better employment record for looking for future employment--

Unidentified Justice: Would you consider Judge Posner's argument about the paperclip contract?

Why can't the same considerations be effective there: that the company loses its contract, it affects its business reputation, it might be a small company and all.

Would your argument apply to that situation?

Marc J. Ansel: --It would... the analysis would apply, but I believe the result would be different.

I don't believe in that situation, where the nature of the private at stake is so very different than the private interest in employment... a person who may have a contract to sell paperclips to the school district in all reality probably has many such contracts and probably is a purveyor of a product, who has no more expectation than an economic one.

Unidentified Justice: But what if he isn't?

What if he's a small business, this is his principal customer, and as soon as he loses this account he's going to be on the rocks for a while and have trouble getting other accounts?

Marc J. Ansel: I think that if the interest at stake, the private interest at stake were truly substantial, as the hypothetical you might prescribe, then perhaps an ear should be given to whether that interest is substantial enough to require a simple explanation.

Unidentified Justice: Well, turn the case around and assume your client was a millionaire.

Would he not have a claim then?

Marc J. Ansel: I think that he may very well have a claim, because the difference between... the impact on him is a more tangential question than evaluating the private interest of employment.

Chances are if he had those economies he probably wouldn't have even bothered to try and go in and get reinstated unless he felt he was wronged.

I don't think--

Unidentified Justice: Well, maybe he likes to coach.

Marc J. Ansel: --Well, I think he does, and I think he likes to teach, and I think that therein lies the difference between the paperclip and teaching.

There is a real expectation on the part of teachers that part of their consideration is the opportunity to teach.

This is understood by all parties and was up understood in this case.

The Respondent left a job that paid him more money.

He left a job he had held for 13 years.

And this was not a unilateral expectation.

This was understood by both sides.

Unidentified Justice: Well, then the federal remedy must have been a great disappointment to him, just as the state remedy was, since it was only... it would have been, just because it was only damages.

Marc J. Ansel: I think the disappointment that my client had was in how long it took us to be able to generate the evidence necessary to seek relief and, with the one year that he had remaining as an expectancy, the realities of federal litigation and the limits of his interest made it impossible to go for reinstatement.

If we had had all the school board members tell the same story, we probably could have gotten an injunction a week later.

But when we had four school board members deny and forget what the conversation was and we had only two school board members admit that the promise was made, the realities of litigation prohibited us in this case from getting the full relief.

And he was disappointed.

Unidentified Justice: Did you try for a preliminary injunction?

Marc J. Ansel: I did not try for a preliminary injunction until I could determine what was going to be said by the school board members, and that was easily found out because I was told right at the very beginning that two board members were going to say that the promise was made by all of them and four board members were going to deny that that promise was made.

Unidentified Justice: But that all could have come out at the preliminary injunction hearing.

Marc J. Ansel: I think it could have, and I think at that point in time we might very well have had a hearing that would have indicated the likelihood of prevailing on the merits.

I hope my client will not have it cost him because I might have failed to generate the evidence that was necessary to get that preliminary injunction in that two-month period.

In any event, the adequacy of a post-deprivation remedy depends upon many other factors and interests that must be weighed in the traditional due process analysis, and I think if one of the other statements in Logan is that those post-deprivation remedies are inadequate, if they do not truly make him whole, then the deprivation itself is considered final in spite of the fact that there may be inadequate remedies remaining at state law.

Unidentified Justice: May I ask one other question.

You are arguing that the Constitution requires a pre-deprivation hearing, and I take it the hearing would be conducted by the people who are going to make the decision to fire the man?

Marc J. Ansel: In fact, I am arguing less than that, because the case doesn't require me to say that.

I am arguing that some type of pre-deprivation process, an explanation of reasons and an opportunity to respond, is required, given the nature of his one-year remaining expectancy.

Unidentified Justice: In other words, it's kind of a notice requirement rather than a hearing requirement.

Marc J. Ansel: It's a notice of reason and an opportunity to respond.

Unidentified Justice: But would it be adequate of the response was in writing?

If it's all done in writing, would that be all right?

Marc J. Ansel: I think that if the opportunity to respond were provided in writing, and depending upon what the reasons were it might be--

Unidentified Justice: You lost too many football games.

Marc J. Ansel: --I think under those circumstances a real opportunity to change their minds is what is required, and I might question, when it could be as easily provided that they could have a conference as writing a letter--

Unidentified Justice: Is it correct, then, that the particular procedure that the Constitution commands depends pretty much on the facts of the particular controversy?

Marc J. Ansel: --Well, I think that that is correct, because certain reasons for termination... if the reason was only that the football record was not a good enough record, then perhaps that reason wouldn't be sufficient to generate a full-blown adversarial hearing.

But if the reasons are such that they raise real questions of fact and if they are such that they raise real questions of stigmatization or real questions that would have a blot on his employment record, perhaps something more than the opportunity--

Unidentified Justice: Well, suppose the board had said to him, look, it's 60 days until the end of the term, we'll see you in court and we'll make all the explanation we have, we'll put the evidence on the record, and if we've breached our contract you'll get a remedy, I suppose, and they said also, we'll guarantee that the hearing in state court will be concluded within 60 days.

Marc J. Ansel: --This would not be adequate because the opportunity to work has still been taken away.

Unidentified Justice: No, it hasn't yet.

It won't be--

Marc J. Ansel: But if he goes to court and wins within 60 days, the only thing he gets is money damages.

He does not get to teach that second year, which is one of the main reasons why--

Unidentified Justice: --Well, I know.

But if it's decided, if it's decided that the school board has breached the contract he's going to get his damages right then, isn't he?

Marc J. Ansel: --Yes, he is.

But the damages in our opinion are not adequate because he is not made whole.

Unidentified Justice: Well, that is--

--Isn't his best chance to save his job the opportunity to convince one of the three who voted against him that he should change his mind?

Marc J. Ansel: I think that that would be the best opportunity, and in light of this--

Unidentified Justice: Well, I don't understand why you're willing to settle for anything less than a hearing of some kind before the five of them so that maybe you can change the minds of one of the three.

Marc J. Ansel: --I am not.

I want the opportunity to change their minds, and even if I could get my contract damages before he actually loses his job, he has still lost his job.

Unidentified Justice: You don't want him to lose it.

Marc J. Ansel: I want an opportunity to determine the rightful or wrongful nature of the deprivation before its lost.

Unidentified Justice: And you concede that the state law doesn't provide for any such hearing, but that the Constitution mandates it?

Marc J. Ansel: I concede that state law does not provide it and, considering how easy it would be to provide him with reasons and considering how much risk there is of a wrongful deprivation when he could be terminated with no reasons, that the Constitution requires it.

Unidentified Justice: What if Illinois followed their common law rule of Lumley against Wagner and said contracts for personal services simply are not enforceable, specifically enforceable, and they applied that to private contractors and also to public contractors like the school district here.

Do you say that the due process part of the Fourteenth Amendment prevents Illinois from following that rather well-established rule?

Marc J. Ansel: I don't think that the due process law prevents Illinois from following its own remedies.

I think due process as implemented through the Civil Rights Act empowers the federal and state courts under federal law to provide additional remedies where state remedies are inadequate.

Unidentified Justice: And would you say that in a case where Illinois followed the rule that contracts for personal services are not specifically enforceable, that 1983 and the due process clause says then a federal court or a state court acting under the federal Constitution may specifically enforce contracts for personal services?

Marc J. Ansel: I think that is correct.

Unidentified Justice: When did that change occur?

Marc J. Ansel: I'm not sure I understand what change you're talking about?

Unidentified Justice: Well, I think most courts had felt that Lumley against Wagner was quite a viable rule, not just for 150 years, but right up until today.

Marc J. Ansel: The Lumley rule is the one that states that federal courts can provide no addition--

Unidentified Justice: No, the Lumley rule, it's a rule of contracts that says contracts for personal services generally are not specifically enforceable.

You can get damages, but you can't force your employer to retain your services when he's decided he doesn't want them.

Marc J. Ansel: --And this is a principle of federal law?

Unidentified Justice: No, I believe it's a well-recognized... did you take contracts in law school?

Marc J. Ansel: Yes, I did.

Unidentified Justice: Well, maybe they didn't treat it there.

But when I went to law school it was a rule of contract damages: You could not get specific performance of a breach of contract.

Marc J. Ansel: And I think this is the rule of Illinois law.

I think this is the common law in Illinois.

But I think that in light of the interest at stake in the case of employment, contract damages are an inadequate remedy.

Unidentified Justice: Well, so what case from this Court has changed it so that state courts can no longer apply Lumley against Wagner?

Marc J. Ansel: The state courts can apply it unless the Civil Rights Act is the basis for the cause of action.

In that case, we invoke the powers of the court granted by that Act.

Unidentified Justice: Well, what case says that a federal court may grant specific performance of a contract for personal services where the state followed a rule that you could not have specific performance?

Marc J. Ansel: This is the meaning and the intent of the Civil Rights Act.

Unidentified Justice: Well, do you have a case in this Court that says that is the meaning and intent of the Civil Rights Act?

Marc J. Ansel: I have nothing more than the remedies provided by the legislature, by the Congress when they granted, the Civil Rights Act passed.

Unidentified Justice: Did Congress say, you shall have in federal court under 1983 a right to specific performance of a contract for personal services?

Marc J. Ansel: Yes, in effect they did.

They said--

Unidentified Justice: Well now, when you say 1983?

Marc J. Ansel: --Yes, they did, when they said that the equitable powers that were granted by the Civil Rights Act would empower any court in which such a proceeding was brought to use those equitable remedies.

Unidentified Justice: Well, until this minute I had understood all you were complaining about is that you didn't get a pre-deprivation hearing, meanwhile hanging onto the job with the hope that at the hearing you could charge somebody's mind.

I didn't know that you were after specific performance of anything.

Marc J. Ansel: I'm not after specific performance, but I'm after the opportunity to remain whole--

Unidentified Justice: But all you want's a hearing, a pre-deprivation hearing, wasn't it?

Marc J. Ansel: --That is correct.

Unidentified Justice: What would you do about that hearing if you got it now?

Marc J. Ansel: If we got it now, we have already lost the opportunity to work and it would no longer be adequate.

Unidentified Justice: So damages is the only available remedy?

Marc J. Ansel: In my case, under these circumstances, where the expectancy was only one more year, I think that by the time we get to the Supreme Court on appeal it is no longer practical to expect reinstatement on the part of either Petitioners or the Respondent.

If I might, in the few minutes remaining, I might indicate that the requirement of pre-deprivation process Petitioners say would increase or foster litigation in the federal courts.

We believe that the exact opposite is true.

Where somebody is deprived of a legitimate claim with no explanation and no reason, this in effect encourages litigation.

This is in effect taking the posture of: Sue me if you want to know why or if you want an opportunity to be heard.

But to the extent that--

Unidentified Justice: What would you have done if when you got the notice of termination, when your client got the notice of termination, the board had said: Should you care to have a hearing before us, please show up next Monday night at 6:00 o'clock.

And so he showed up and you went completely through the whole thing and the board said: Well, we don't think we're breaking Illinois law, but even if we are you're fired, and now if you want a remedy go to court someplace, because all you can get are damages.

Now, suppose that had happened.

Marc J. Ansel: --I think that under the procedural due process analysis that we make here that process would have satisfied due process.

Just the opportunity to be told why and respond, just a chance to change their minds before this very real loss occurs is all we seek.

There is no substantial government interest in that.

Unidentified Justice: Well, did he ever, as a matter of fact did he ever ask why he was fired?

Marc J. Ansel: Yes, he did, and he was told: We don't have to give you any reasons.

The lawyer who he first contacted asked for the reasons, asked for an opportunity to meet, asked for an opportunity to talk, and they refused to grant it.

This is what caused the litigation in this case.

Pre-deprivation process would narrow the issues.

In many cases it would contribute to a feeling of fairness.

And if this Court were to require it when somebody is deprived of a loss in the middle of their term, then it would be provided in future cases.

Unidentified Justice: But Mr. Ansel, even if he had had the hearing the school board would not have been required to give him their reasons, would they?

Marc J. Ansel: If he was not provided with reasons, then he had no meaningful opportunity at a meaningful time and there would be a violation of due process.

The most fundamental requirement here is a simple explanation of why, after he was promised two years, why.

That is not a heavy burden.

Unidentified Justice: May I ask just one question.

I know your light is on, but supposing this were a private employer and they fired a football coach and they followed precisely the procedure that was done here and then he sued later and so forth.

Would that individual receive due process of law within the meaning of the Fourteenth Amendment?

Marc J. Ansel: I understand that the due process elements would not be applied in a situation of private employment, and I understand that the due process clause was intended to have the government interact with the citizens on a higher level or on a fundamentally fair level, maybe one that isn't used often enough in private business.

If there are no further questions, I think my time is up.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Miller?

REBUTTAL ARGUMENT OF THOMAS REED MILLER, ESQ., ON BEHALF OF PETITIONERS

Thomas Reed Miller: I do, Mr. Chief Justice.

Just briefly, I would like to go back to the remedy issue and, contrary to what counsel I believe was attempting to imply, there is no federal common law remedy to reinstatement under the facts of this case.

As a matter of fact, I believe this Court's decision in Bishop, footnote number 14, would indicate that reinstatement for the failure to provide pre-termination hearings are very rare indeed and only occur in those situations in which the statute itself is a for-cause provision.

Unidentified Justice: But Mr. Miller, if the law were perfectly clear, and I don't suggest it is, that the Constitution required a public employer to give a pre-termination hearing... say that was clearly the law... and you fired a man without giving him such a hearing, he promptly went into federal court and asked for an injunction, saying I want that hearing before the discharge becomes effective, are you saying a federal court would not in those circumstances have power to enter a temporary restraining order?

Thomas Reed Miller: No, I do not believe that... I believe that the federal court has that power to certainly issue that injunction.

But what I am saying is that under Illinois law and I think the stated law of this Court that if there is shown a breach of contract that there is no remedy to reinstatement for an employee of this classification--

Unidentified Justice: But that doesn't meet the claim that he wants the chance to give his side of the case.

Thomas Reed Miller: --No, it does not.

Unidentified Justice: And you don't deny that the board refused him the opportunity?

Thomas Reed Miller: I do not deny that.

What I am stating to the Court is that the board's interpretation of Illinois law was that no reason need be given to the Respondent for his discharge, because of the fact that Section 10-22.4 says that whenever in the best interest of the school a discharge is warranted you may discharge that person.

Unidentified Justice: Well, you're certainly close to your state law argument now.

Thomas Reed Miller: This case I believe from my point of view cries out for state court determination, because of the facts that... or the points that there has been no state law determination of the probationary term contract, there has been no state law determination as to whether a term contract in a probationary framework is a property right.

And the Seventh Circuit holds in this case that a term contract is a property right, and where do we draw the line?

Do all elements of term contracts then have property vestage?

Let's take, for an example, an element of the Respondent's contract, a fringe benefit that's a part of that total package.

If that stick, if you will, is taken away from the Respondent without a pre-termination hearing, is that a violation of the Constitution?

It appears to me that if this Court were to hold that all term contracts, and specifically in the backdrop of a state statutory tenure scheme, are property rights, that we certainly do open up the floodgates for the federal courts to determine not only whether this is or is not a property right, but also what process is due.

What form does that pre-termination hearing take?

Will that not be litigated extensively.

If the Respondent was not satisfied in this case with the form of the pre-termination hearing that he got, that would be an issue that the federal courts would have to decide likewise.

So for these reasons, the Petitioner board of education feels strongly that the Seventh Circuit Court of Appeals decision should be reversed.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.