Batagiannis, Stella v. West Lafayette Comm

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2862
STELLA C. BATAGIANNIS,
Plaintiff-Appellant,
v.
WEST LAFAYETTE COMMUNITY
SCHOOL CORPORATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 4:04-cv-0035-AS—Allen Sharp, Judge.
____________
ARGUED APRIL 7, 2006—DECIDED JULY 24, 2006
____________
Before FLAUM, Chief Judge, and POSNER and
EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. West Lafayette, Indiana,
hired Stella Batagiannis in 1999 as Superintendent of the
school district. In 2002 the board of education (as we
call the governing body) gave Batagiannis a new contract
running until June 30, 2007. In May 2003, with more
than four years to go on that deal, the board suspended
Batagiannis (with pay) after losing confidence in her
leadership. She responded with a suit in state court,
maintaining that the suspension was a de facto discharge;
the state court declined to enjoin the board’s proceedings or
undo the suspension. After a hearing in April 2004 the
2 No. 05-2862
board converted de facto to de jure and fired Batagiannis.
This federal suit under 42 U.S.C. §1983 maintains that
these steps violated Batagiannis’s rights under the due
process clause of the fourteenth amendment; she also
contends that the board unlawfully retaliated against her
for filing the state-court suit.
The district court granted summary judgment for the
defendants (the school board and its trustees) after conclud-
ing that the April 2004 hearing provided Batagiannis with
all requisite process. Logically the initial question on appeal
should be whether any process was due. Batagiannis had a
term contract, which creates a property interest. See
Cleveland Board of Education v. Loudermill, 470 U.S. 532
(1985); Board of Regents v. Roth, 408 U.S. 564 (1972). But
the Supreme Court’s opinions on the subject of hearings
when state actors propose to terminate a property interest
in employment all concern line employees. Batagiannis, by
contrast, was a policymaker, the head of a school district
and wielder of considerable discretionary authority. Such a
person may well have a property interest in the office’s
emoluments but not in the office itself—yet it is restoration
to the position of Superintendent, and not just money, that
Batagiannis seeks in this litigation.
The due process clause secures private interests against
public deprivation. Governmental powers are not them-
selves private property. They do not exist independently
of the government and are not secured against govern-
mental interference. They are aspects of government,
integral to it rather than claims against it. An attribute of a
state’s sovereignty can’t sensibly be secured in private
hands against governmental deprivation. Cf. Stone v.
Mississippi, 101 U.S. 814, 820 (1880) (“[T]he power of
governing is a trust committed by the people to the govern-
ment, no part of which can be bargained away. . . . The
contracts which the Constitution protects are those that
relate to property rights, not governmental.”). Every
No. 05-2862 3
appellate decision that has addressed the subject accord-
ingly has held that a contractual right to be a superinten-
dent of schools creates a property interest in the salary of
that office but not the ability to make decisions on behalf of
the public. See Royster v. Board of Trustees, 774 F.2d 618
(4th Cir. 1985); Kinsey v. Salado Independent School
District, 950 F.2d 988 (5th Cir. 1992) (en banc); Holloway v.
Reeves, 277 F.3d 1035 (8th Cir. 2002); Harris v. Board of
Education, 105 F.3d 591, 596-97 (11th Cir. 1997) (dictum;
appeal was resolved on immunity grounds). A superinten-
dent of schools is in this respect like a football coach or a
corporate CEO: the office may be withdrawn if the agreed
compensation is paid. Jett v. Dallas Independent School
District, 798 F.2d 748 (5th Cir. 1986). Cf. Wiener v. United
States, 357 U.S. 349 (1958) (a federal official fired before a
set term is up is entitled to be paid for the remainder of the
term); Richardson v. Sugg, 448 F.3d 1046 (8th Cir. 2006)
(same for basketball coach).
Defendants do not rely on this line of decisions, however,
perhaps because they want to cut off Batagiannis’s salary
as well as her tenure of office. Nor do they contend that
litigation in state court provides the process due for any
error (whether substantive or procedural) they may have
made. See Chicago United Industries, Ltd. v. Chicago, 445
F.3d 940, 944-45 (7th Cir. 2006); Mid-American Waste
Systems, Inc. v. Gary, 49 F.3d 286, 291-92 (7th Cir. 1995).
We therefore approach the appeal as the parties themselves
have done—by assuming that the due process
clause entitled Batagiannis to some kind of hearing—
without examining whether that assumption is justified.
Litigants in a future case may choose to explore the ques-
tions that these parties bypassed.
Batagiannis maintains that the hearing she received
in 2004 is deficient because the school board’s members
made up their minds in 2002 or 2003 to get rid of her; all
had prejudged the issue, and the hearing was a sham, by
4 No. 05-2862
her lights. In this respect, however, Batagiannis received
exactly what she had agreed to accept: a hearing by the
school board. That’s what ¶5.b of her contract specified; by
signing, she waived any entitlement to a wholly neutral
decision-maker. Although Arnett v. Kennedy, 416 U.S. 134
(1974), rejected Justice Rehnquist’s argument that gov-
ernment can avoid hearings by enacting a statute dispens-
ing with them, the Court has never doubted the ability
of individual employees to waive entitlements or negotiate
in advance the details of the hearings they will receive.
That’s the premise of arbitration agreements, which
surrender access to the courts in exchange for benefits that
employees value more (such as higher salaries or faster
decisions). See Circuit City Stores, Inc. v. Adams, 532 U.S.
105 (2001) (enforcing employee’s agreement to arbitrate).
It is understandable that the board wanted to retain the
authority to make the decision. Members are elected to
set policy. They chose to delegate most decisions to a
superintendent but are entitled (and doubtless expected
by their constituents) to monitor the schools’ administration
and replace anyone not meeting their standards, see Ind.
Code §20-26-5-4(8)(A)—whether or not the differences of
opinion amount to “cause” for the superintendent’s dis-
charge. Accepting Batagiannis’s position in this ap-
peal would cripple the democratic process. Suppose the
incumbents on the board supported the superintendent they
had installed and their opponents stood for election on a
platform of hiring a new superintendent to carry out
different policies. According to Batagiannis’s argument,
however, as soon as the challengers were elected they would
be disabled from replacing the superintendent, for they
would have prejudged the issue.
Indeed, outgoing members of the board could vitiate the
election by giving their appointee a term of office long
enough to outlast the new members. Batagiannis herself
had a five-year contract, exceeding the four-year term to
No. 05-2862 5
which board members are elected. (This board has experi-
enced rapid turnover; only two of the seven trustees serving
in 2004, when Batagiannis was fired, remain in office. See
http://www.wl.k12.in.us/co/board/board.htm (listing the
board’s current members).) A long contract, plus a rule
against participation in the decision by anyone who already
had an opinion, would block the populace from using
elections to change the way their schools are run. The due
process clause does not prevent the creation of new policy;
and when policy is carried out through appointees, the
requirement of an opportunity for a hearing must be
implemented in a way that allows the politically responsible
office-holders to achieve their aims.
In saying this, we are well aware that administrative
decision-makers, like judges, must be unbiased (though the
definition of bias may differ, and judges are subject to extra
rules that curtail the appearance of impropriety). See, e.g.,
United States v. Morgan, 313 U.S. 409, 421 (1941); Withrow
v. Larkin, 421 U.S. 35 (1975); Schweiker v. McClure, 456
U.S. 188 (1982). Still, quite apart from Batagiannis’s
agreement that the school board could hold any required
hearing is the fact that having strong views about wise
public policy has never been understood to be the sort of
“bias” that either commissioners or judges must avoid.
That’s why the Federal Trade Commission may both issue
a complaint (taking a stand about what the antitrust laws
require) and adjudicate the claim that their complaint
initiates. See FTC v. Cement Institute, 333 U.S. 683 (1948).
Members of the FTC, the SEC, the NLRB, and many other
agencies carry out their views through adjudication as well
as rulemaking, and the rights of the respondents in these
proceedings are protected not by insisting that the commis-
sioners arrive with empty heads but by ensuring an oppor-
tunity for judicial review of each decision, so that the
agency’s application of law to the facts may be put to the
test before someone with no personal knowledge of the
6 No. 05-2862
disputed facts. See Hortonville Joint School District v.
Hortonville Education Association, 426 U.S. 482, 493 (1976)
(school board’s familiarity with the facts did not disqualify
its members). So far as the Constitution is concerned, then,
members of the West Lafayette school board are entitled to
act on their views about how the schools should be run.
Aside from her claim of bias, Batagiannis’s objections
to the hearing do not occasion much analysis. She contends,
for example, that the reasons the board gave for ending her
employment “impugned her integrity.” There is no constitu-
tional right to be free of defamation, see Paul v. Davis, 424
U.S. 693 (1976), and although there may be a right to a
hearing when defamatory statements interfere with
employment, see Codd v. Velger, 429 U.S. 624 (1977), a
hearing is just what Batagiannis received. Her complaints
about a lack of pre-hearing discovery assume that there is
such an entitlement, which there isn’t. There is no constitu-
tional right to discovery even in criminal prosecutions. See
Wardius v. Oregon, 412 U.S. 470 (1973). Batagiannis
received a hearing considerably more elaborate (it lasted
four evenings) and trial-like (it included cross-examination
by counsel) than the informal exchange that the Supreme
Court has held to be sufficient. The Court requires “some
opportunity for the employee to present his side of the
case”. Loudermill, 470 U.S. at 543. Batagiannis received
that and more.
As for her contention that the board retaliated against
her because she filed a suit in state court: why is that
actionable under 42 U.S.C. §1983? That statute provides
relief for state actors’ violations of the Constitution and
laws of the United States, but a suit in state court and
resting on state law is neither. Although speech in the
course of litigation may be protected by the first amend-
ment, see BE&K Construction Co. v. NLRB, 536 U.S. 516
(2002), the Justices added that this does not relieve liti-
gants of all costs arising from litigation—such as awards of
No. 05-2862 7
attorneys’ fees and sanctions for frivolous arguments. Id. at
537. State courts are quite capable of protecting access to
their own processes; using the Constitution to achieve that
objective risks turning all claims arising under state law
into federal offenses, which §1983 is not designed to do.
Speech, in or out of court, may be informative—and, for
policymaking officials, the basis of adverse action. Consider,
for example, what would happen if the Secretary of State in
a Republican administration were to write an op-ed piece
endorsing the foreign-policy platform of the Democratic
candidate in an upcoming election. The op-ed piece would
be speech, but elected officials may insist that their
policymaking officials support their programs, and the
cabinet officer could be fired. See Rutan v. Republican Party
of Illinois, 497 U.S. 62, 74 (1990). We applied this principle
recently to hold that assistant wardens in Illinois prisons
may be hired and fired on political grounds. Riley v.
Blagojevich, 425 F.3d 357 (7th Cir. 2005). Superintendents
of education, who exercise greater discretion than assistant
wardens, likewise may be hired and fired on the basis of
speech implying support for, or opposition to, the elected
officials’ programs. By filing suit against the board,
Batagiannis made it clear that she and the elected officials
were no longer operating as a team; the board was entitled
to take that into consideration. Indeed, judges do the same
in employment-discrimination cases involving non-
policymaking personnel. One common reason for denying
reinstatement, and awarding front pay instead, is that the
litigation has made a harmonious employment relation
impossible. See, e.g., McKnight v. General Motors Corp., 973
F.2d 1366, 1370 (7th Cir. 1992). The board’s decision
here—noting that the elected officials had lost confidence in
Batagiannis in part because she had filed suit rather than
working out differences in private—is in the same spirit.
What’s more, this particular claim of retaliation is
incoherent on its own terms. Recall the foundation of the
8 No. 05-2862
state suit: Batagiannis insisted that the suspension was
a de facto discharge and demonstrated that the board
already had decided to get rid of her. The formal decision in
2004 cannot be “retaliation” for the state suit when it just
confirms something that, according to the litigation,
preceded the suit’s commencement.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-24-06