Velez v. Levy, No. 03-7875 (2d Cir. Mar. 11, 2005)
The U.S. Court of Appeals for the Second Circuit has ruled that a school board member had no constitutionally protected property interest in her board position under the Fourteenth Amendment. However, the court found that she did have a valid liberty interest under the Fourteenth Amendment that may have been violated by her removal from the board without adequate procedural due process. The court also rejected her claim that her removal violated her Fourteenth Amendment right to substantive due process, although it found that she stated a valid legal claim that her removal was in retaliation for political views protected by the First Amendment. Amy Velez was an elected member of her community school board, which governs one of 32 community school districts comprising the City School District of the City of New York. Some board members claimed that Ms. Velez left one particularly rancorous meeting, went to the door outside the acting superintendent's office, and sprinkled a suspicious powder in front of the door. They reported this alleged incident to New York City Chancellor of Schools Harold Levy and, allegedly, to the news media. Mr. Levy ordered an investigation, which concluded that Ms. Velez had engaged in conduct of a criminal nature. Pursuant to his authority under the state education code, he removed her from office. However, the New York City Board of Education (BOE) reinstated Ms. Velez, after finding that the investigation was incomplete, its conclusions illogical, and Mr. Levy's order arbitrary and capricious. She filed suit in federal district court, alleging that her removal, although overturned, deprived her of various federal and state rights and brought her stigma, embarrassment, and emotional distress. The district court concluded that Ms. Velez did not have any valid constitutional claims and dismissed her suit. The Second Circuit affirmed the lower court's decision in part, vacated it in part, and remanded the case to the lower court for further proceedings. The Fourteenth Amendment prohibits the government from depriving a person of life, liberty, or property without due process of law. Rejecting Ms. Velez's assertion that she had a property interest in her board position, the Second Circuit cited the U.S. Supreme Court's rulings that "public offices are mere agencies or trusts, and not property as such." Turning to her claim that the stigma she suffered from public accusations of criminal conduct, along with loss of her board position, amounted to a deprivation of liberty, the court found that she had alleged a valid "stigma-plus" liberty interest claim: a statement injurious to her reputation, plus some other government burden in addition to the statement. The post-termination hearing afforded Ms. Velez was inadequate due process for this deprivation, because an after-the-fact hearing only suffices where the government is unable to anticipate and prevent the deprivation, as in the case of a random, unauthorized act of a state employee. In contrast, the actions of "a high-ranking state official with 'final authority over significant matters,'" like Chancellor Levy, "more closely resemble established state procedures than the haphazard acts of individual state actors." As a result, a pre-removal hearing was required to satisfy Ms. Velez's right to procedural due process. The court dismissed Ms. Velez's claim that her right to substantive due process was violated by a conspiracy among the board members, Mr. Levy, and school district officials to deprive her of her rights to free speech and equal protection. Noting that a substantive due process claim must allege government conduct so egregious as to "shock the conscience," the court found that Ms. Velez's allegations might meet this standard. However, the court noted that the Supreme Court has held that if a court can assess a plaintiff's claim under a more explicit constitutional protection, like free speech or equal protection, it must not rely on the broad notion of substantive due process. As for the First Amendment retaliation claim, the appeals court concluded that Ms. Velez stated a valid claim by alleging that Mr. Levy removed her for her political views, but it affirmed the district court's dismissal as to the other defendants because Ms. Velez failed to allege that the botched investigation was motivated by a particular animus toward her. Finally, the court held that Mr. Levy was not entitled to qualified immunity at this stage of the litigation, because Ms. Velez had alleged valid claims that, if proven, would demonstrate that Mr. Levy had violated clearly established law.
Velez v. Levy, No. 03-7875 (2d Cir. Mar. 11, 2005)
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