Southfield Education Association v. Board of Education of Southfield Public Schools

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE

         In 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.

         The 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.

         I.

         The facts of the case are taken from the corrected amended complaint and the public record.

         In 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 school.

         These 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)).

         The 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).

         The 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 consolidations.

         In 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.

         The 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.

         The 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 dismiss.

         II.

         The 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).

         When 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).

         A.

         1.

         The 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.

         Claims 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.

         In 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 ...