Employee Right to Pre-Dismissal Hearing Is Disputed in Two Cases Before Court

By Tom Mirga — December 12, 1984 6 min read

Washington--A federal appeals court erred when it ruled that the 14th Amendment’s due-process clause entitles school employees to hearings before they are fired, a lawyer for two Ohio school boards told the U.S. Supreme Court last week.

If employees are given sufficient notice of their dismissal and an opportunity for a timely, “meaningful” hearing after they lose their jobs, due-process requirements are satisfied, said James G. Wyman, lawyer for the school boards of Cleveland and nearby Parma.

His remarks came during arguments in the consolidated cases of Cleveland Board of Education v. Loudermill (Case No. 83-1362), Parma Board of Education v. Donnelly (No. 83-1363), and Loudermill v. Cleveland Board of Education (No. 83-6392).

But according to a lawyer for two Ohio school employees who contested their dismissals, the issue in the cases “is not whether pre-termination hearings are required but rather what kind of [pre-termination] hearings are required.”

‘Knockout Punch’

“The right to continued government employment is substantial,” the employees’ lawyer, Robert M. Fertel told the Justices. Civil servants who cannot challenge dismissals before they take effect, he said, face the “knockout punch” of losing not only their wages and unemployment benefits, but often their “house, car, family, and self-esteem” as well.

The Cleveland case stemmed from the November 1980 firing of a security guard for allegedly lying about an 11-year-old felony conviction when he filled out a job application. The Parma case is rooted in the 1977 dismissal of a bus mechanic who failed to pass, and declined to retake, a mandatory eye examination.

Law’s Provisions

The Ohio civil-service law challenged by the school workers guarantees government employees only the right to written notice of dismissal, a right to appeal within 10 days of the notice, and the right to a hearing within 30 days after the filing of the appeal.

The workers contended that their rights to due process of law were violated because they were given no chance to argue their cases before they were fired.

The Cleveland civil-service commission and a federal district judge upheld the validity of the security guard’s dismissal. Although the Parma bus mechanic won his job back, state courts and a federal district court blocked his attempts to win back pay and damages for the time between his dismissal and reinstatement.

In November 1983, the U.S. Court of Appeals for the Sixth Circuit reversed the lower federal courts’ decision in the cases. The court stated that “the compelling private interest in retained government employment, combined with the substantial safeguard of presenting evidence before dismissal, outweighs the added administrative burden” of pre-termination hearings.

‘No Useful Purpose’

But such hearings “would have served no useful purpose” in the Cleveland and Parma cases, the lawyer for those cities’ school boards said during last week’s arguments before the Court.

“The only thing [the dismissed employees] could have said is, ‘I didn’t mean it’ or ‘I didn’t know,”’ said Mr. Wyman.

He also told the Justices that the employees’ interest in avoiding a brief delay in receipt of income from a lost government job “is relatively inconsequential.”

“In these cases, we’re talking about a temporary loss of employment and wages,” Mr. Wyman said. “If we’re wrong, they can be made whole entirely. It’s not as if they wouldn’t be able to survive.”

That characterization of the situation contrasted sharply with the one offered by Mr. Fertel, the lawyer for the school employees.

“In this kind of case, you have the awesome power of government against the individual, who is often without the benefit of counsel,” Mr. Fertel said. “You’re dealing not only with monetary damages but psychological damages as well.”

The Court could hand down a ruling in the cases by next spring.

Special Education

In other action last week, the Court agreed to hear a Massachusetts case involving the right of parents to be reimbursed by local governments for the costs of a private education for their handicapped children.

Last May, in Town of Burlington v. Department of Education of the Commonwealth of Massachusetts (No. 84-433), the U.S. Court of Appeals for the First Circuit ruled that in some cases parents who unilaterally place their handicapped children in private schools may be entitled to reimbursement for tuition and other education-related expenses as well as additional monetary damages.

The case stemmed from the May 1979 decision by the parents of an 8-year-old handicapped child to place him, without the permission of state or local officials, in a private school for children with learning disabilities. At the same time, they filed an appeal with the state board of education protesting a new individualized education plan for their son that would have placed him in a special-education class in a different public school in the 1979-80 school year.

Appropriate Placement

In January 1980, a hearing officer ruled that the appropriate placement for the child was in the private school and ordered the town and its school committee to pay for that placement. The town and school committee, arguing that the parents’ unilateral placement of their son made them ineligible for reimbursement, appealed to a federal district court.

In November 1980, the court ruled against the local officials and in February 1981 ordered them to reimburse the parents for tuition and related expenses. Faced with a possible cutoff of federal funds, the school committee agreed to pay “with the strict understanding that if [it was] successful in the litigation, the [parents] would repay the money,” according to papers filed with the Court.

In June 1981, the First Circuit Court overturned the lower court’s order regarding repayment and sent the case back for a new trial. In August 1982, the district court ruled that the 1979 iep that would have placed the child in a public school was appropriate and ordered the parents to to pay back to the school committee all money spent on their son’s education up to February 1981.

On appeal for a second time, the First Circuit Court ruled last May that the parents’ right to reimbursement for tuition and expenses from January 1980 to the end of the 1979-80 school year was absolute, and that they had a possible right to further reimbursement if the district court on remand determined “serious procedural violations” by school officials in developing the original iep and other “equitable considerations.”

In their brief, the local officials argue that because the parents changed their son’s placement without the permission of state or local authorities, they forfeited any right to reimbursement under the Education for All Handicapped Children Act, P.L. 94-142.

They also argue that the First Circuit Court parted ways with virtually every other federal appeals court when it ruled that the parents of handicapped children are in some circumstances entitled to damages under P.L. 94-142. “To speak of awarding damages on the basis of discretionary equitable considerations is virtually to stand Anglo-American jurisprudence on its head,” they said.

The State of Massachusetts and the parents, meanwhile, argued that the First Circuit Court’s holding was not in conflict with decisions of other federal appeals courts. “Any distinctions between the decision and those of other circuits certainly do not present the type of conflict which warrants” Supreme Court review, they said.

A version of this article appeared in the December 12, 1984 edition of Education Week as Employee Right to Pre-Dismissal Hearing Is Disputed in Two Cases Before Court