United States District Court, E.D. Michigan, Southern Division
SOUTHFIELD EDUCATION ASSOCIATION, JOSIE BUSBEE, JACKIE DUNLAP, RONDA ELLIS, NEDESTA NWABUEZE, RENETTA WASHINGTON, and TRACY ARMSTRONG, Plaintiffs,
BOARD OF EDUCATION OF THE SOUTHFIELD PUBLIC SCHOOLS, and SOUTHFIELD PUBLIC SCHOOLS, Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTIONS TO DISMISS
M. LAWSON UNITED STATES DISTRICT JUDGE
2011, the State of Michigan amended its Revised School Code.
One of the revised sections addressed hiring and retaining
“effective teachers, ” and established criteria
for rating teachers' effectiveness. Those criteria are to
be used in making personnel decisions involving program
reductions, eliminating positions, and recalling laid-off
teachers; and they displaced seniority as a predominant
factor governing those decisions. The plaintiffs - tenured
Southfield school teachers and their union - contend that the
teachers have a property right in their effectiveness ratings
once they are assigned, and they allege that the defendants
failed to base staffing decisions that followed recent school
consolidations on those ratings. That procedural departure,
they say, contravened their rights under the Due Process
Clause, and they have filed a complaint seeking damages.
There is a state remedy for a school district's failure
to use the effectiveness ratings in making personnel
decisions, but it is limited to reinstatement and explicitly
bars an award of back pay and other damages. The plaintiffs
contend that the statute is unconstitutional.
district and the school board have moved to dismiss the
complaint, arguing that the teachers have no property right
to continued employment, the post-deprivation procedures are
adequate and so is the remedy, and the statute is
constitutional. And they contend that they have been through
all this before in earlier lawsuits, which ended in their
favor, and which preclude this case. The state attorney
general intervened to defend the state statute and filed a
motion to dismiss as well, echoing some of the same
arguments. The Court heard oral argument on November 21,
2017. The plaintiffs have stated a viable claim under the Due
Process Clause. Their facial challenge to the
constitutionality of the state statute is barred by claim
preclusion, but not their as applied challenge. The Court
will grant the motions in part and deny them in part.
facts of the case are taken from the corrected amended
complaint and the public record.
2016, the Southfield, Michigan school district consolidated
its two high schools into one and closed a
kindergarten-through-eighth-grade school. Predictably, the
school closures resulted in a reduction of its teacher
workforce. To staff the newly-formed consolidated high
school, the school district required its existing high school
teachers to interview for the teaching positions at the new
events occurred against the backdrop of the 2011 amendments
to Michigan's Revised School Code. Historically, tenured
teachers in Michigan - those certified teachers who
successfully completed a probationary period - enjoyed a
right to “be employed continuously” by their
school board, unless discharged for cause. Mich. Comp. Laws
§ 38.91(1) (1996). And if teachers were laid off because
of a staff reduction, they were entitled, based on length of
service, to “‘be appointed to the first vacancy
in the school district for which he is certified and
qualified.'” Tomiak v. Hamtramck Sch.
Dist., 426 Mich. 678, 688, 397 N.W.2d 770, 774 (1986)
(quoting Mich. Comp. Laws § 38.105(1) (1996), repealed
by Pub. Act 101 (2011)).
2011 legislative amendments eliminated the right to recall
found in the Teacher Tenure Act and instituted a merit-based
system of evaluating teachers that displaced seniority as the
predominant factor in making school staffing decisions.
See Baumgartner v. Perry Pub. Sch., 309 Mich.App.
507, 526-27, 872 N.W.2d 837, 847-48 (2015). The legislation
required school districts to adopt “a rigorous,
transparent, and fair performance evaluation system”
applied “at least annually, ” that rated teachers
on the following scale: “highly effective, effective,
minimally effective, and ineffective.” Mich. Comp. Laws
§ 380.1249(1)(a), (c). These ratings are to be based on
a host of weighted factors, including “student growth
and assessment data” (25% for the years in question);
teacher performance measured by an “evaluation
tool” that factors in “evidence of student
growth, ” a teacher's “demonstrated
pedagogical skills, ” classroom management skills, and
attendance and discipline records; classroom observation; and
lesson plan review. Mich. Comp. Laws §
380.1249(2)(a)(i), (iv), (e) (citing Mich. Comp. Laws §
380.1248(1)(b)(i)-(iii)). And the ratings, which are intended
to ensure retention of “effective teachers, ” are
to be used by school districts in making “all personnel
decisions” including layoffs, reductions in force,
recalls, and hiring after force reductions. Mich. Comp. Laws
§ 380.1248(1)(b). Seniority was relegated to a distant
tie-breaking factor. Mich. Comp. Laws § 380.1248(1)(c).
plaintiffs in this case include Josie Busbee, Jackie Dunlap,
Ronda Ellis, Nedesta Nwabueze, Renetta Washington, and Tracy
Armstrong. They allege that they were employed by Southfield
Schools as certificated tenured teachers, who had earned
their status as effective teachers. Their union, the
Southfield Education Association (SEA), also is a plaintiff
and brings this suit on behalf of other teachers who were
indefinitely laid off in June 2016 as a result of school
2016, the defendants consolidated Southfield High School and
Southfield Lathrup High School into a single high school,
which resulted in a reduction in personnel, including the
elimination of certain teaching positions held by teachers
represented by SEA. The new school, located on the Southfield
Lathrup High School premises, was renamed the Southfield High
School for the Arts and Technology, and one other school,
Brace Lederle, also was closed. As part of the consolidation
process, Southfield required teachers to interview for open
positions at the new school. Although the Southfield School
Board adopted a policy that purportedly implemented the 2011
Revised School Code Amendments regarding staff reductions and
recalls (Policy 3131), the plaintiffs allege that teachers
were given a score based on the interviews, and those who
earned sufficiently high scores were retained as teachers.
The remaining teachers, including the named plaintiffs and
other similarly situated teachers, were laid off.
plaintiffs maintain that in determining which teachers were
to be retained or laid off, Southfield did not comply with
the above-mentioned statutory requirements or its own
policies. It did not consider the effectiveness of those
teachers as measured by their performance evaluations under
section 1249, nor did it consider any or all of the
enumerated factors in section 1248 and its policy. The named
plaintiffs and other similarly situated members of SEA were
not given any notice or opportunity to challenge
Southfield's actions before termination. And the
defendants did not continue to pay them or postpone their
layoffs until after some post-termination review, which was
not made available to the plaintiffs in any event.
plaintiffs filed their two-count complaint in April of last
year alleging the violation of their rights to procedural due
process under 42 U.S.C. § 1983, and a violation of
Michigan Compiled Laws § 380.1248. The plaintiffs also
contended that the remedial portion of section 1248, which
limits relief to reinstatement and bars recovery of
compensatory damages, is unconstitutional. In July 2017, the
state attorney general moved to intervene to defend the
statute's constitutionality. The defendants and
intervening defendant then filed their respective motions to
motions to dismiss have been brought under Federal Rule of
Civil Procedure 12(b)(6). The standards under that rule are
well known to the parties: the purpose of the motion is to
allow a defendant to test whether, as a matter of law, the
plaintiffs are entitled to legal relief if all the factual
allegations in the complaint are taken as true. Rippy ex
rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir.
2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th
Cir. 1993)). The complaint is viewed in the light most
favorable to the plaintiffs, the factual allegations in the
complaint are accepted as true, and all reasonable inferences
are drawn in favor of the plaintiffs. Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426,
430 (6th Cir. 2008). To survive the motion, the plaintiffs
“must plead ‘enough factual matter' that,
when taken as true, ‘state[s] a claim to relief that is
plausible on its face.' Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556, 570 (2007). Plausibility
requires showing more than the ‘sheer possibility'
of relief but less than a ‘probab[le]' entitlement
to relief. Ashcroft v. Iqbal, [556 U.S. 662');">556 U.S. 662, 678]
(2009).” Fabian v. Fulmer Helmets, Inc., 628
F.3d 278, 280 (6th Cir. 2010).
deciding a motion under Rule 12(b)(6), the Court looks only
to the pleadings, Jones v. City of Cincinnati, 521
F.3d 555, 562 (6th Cir. 2008), the documents attached to
them, Commercial Money Ctr., Inc. v. Illinois Union Ins.
Co., 508 F.3d 327, 335 (6th Cir. 2007) (citing
Fed.R.Civ.P. 10(c)), documents referenced in the pleadings
that are “integral to the claims, ” id.
at 335-36, documents that are not mentioned specifically but
which govern the plaintiff's rights and are necessarily
incorporated by reference, Weiner v. Klais & Co.,
Inc., 108 F.3d 86, 89 (6th Cir. 1997), abrogated on
other grounds by Swierkiewicz v. Sorema, N.A., 534 U.S.
506 (2002), and matters of public record, Northville
Downs v. Granholm, 622 F.3d 579, 586 (6th Cir. 2010).
However, beyond that, assessment of the facial sufficiency of
the complaint ordinarily must be undertaken without resort to
matters outside the pleadings. Wysocki v. Int'l Bus.
Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010).
defendants (including the intervening defendant) first attack
the plaintiff's due process claim, arguing that the
teachers have no property interest in continued employment or
a right to recall protected by the Fourteenth Amendment.
under 42 U.S.C. § 1983 require a showing that a person
acting under color of state law deprived the plaintiff of a
right “secured by the Constitution or laws of the
United States.” Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting
Sigley v. City of Parma Heights, 437 F.3d 527, 533
(6th Cir. 2006)). Here, the plaintiffs source that right in
the Due Process Clause of the Fourteenth Amendment.
order to establish a procedural due process violation, the
plaintiff must show that (1) it has a life, liberty, or
property interest protected by the Constitution; (2) it was
deprived of that interest by a state actor; and (3) it was
not afforded timely and adequate process under law.
Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir.
2009). “Property interests 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.”
Women's Med. Prof'l Corp. v. Baird, 438 F.3d
595, 611 (6th Cir. 2006) (quoting Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972) (internal
quotation marks omitted)). A “person ...