Rogers v Masem Response to Petition

    IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 
- - - -x

LESLIE T. ROGERS, :
APPELLANT :

v. ; No. 84-2425EA
PAUL MASEM, Superintendent :
of Schools of the Little 
Rock, Arkansas, School :
District, and MEMBERS OF 
THE BOARD OF EDUCATION OF :
THE LITTLE ROCK, ARKANSAS 
SCHOOL DISTRICT, Individually: 
and in their Official 
Capacities, :

APPELLEES :
- - - - - - - - -  -x
Appeal from the United States District Court 

Eastern District of Arkansas 
Western Division

The Honorable William R. Overton 
United States District Judge

RESPONSE OF APPELLANT TO PETITION FOR 
REHEARING BY THE PANEL OR BY THE 

COURT EN BANC

JOHN W. WALKER MARIE-BERNARDE MILLER 
JOHN W. WALKER, P.A.
1723 Broadway
Little Rock, Arkansas 72206 
(501) 374-3758
JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
THEODORE SHAW 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900
Attorneys for Appellant



IN THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

- - - - - -  - -x
LESLIE T. ROGERS, :

APPELLANT :
v. : No. 84-2425EA
PAUL MASEM, Superintendent :
of Schools of the Little 
Rock, Arkansas, School :
District, and MEMBERS OF
THE BOARD OF EDUCATION OF :
THE LITTLE ROCK, ARKANSAS 
SCHOOL DISTRICT, Individually: 
and in their Official 
Capacities, :

APPELLEES :
- - - - - - - -  - -x
Appeal from the United States District Court 

Eastern District of Arkansas 
Western Division

The Honorable William R. Overton 
United States District Judge

RESPONSE OF APPELLANT TO PETITION FOR 
REHEARING BY THE PANEL OR BY THE 

COURT EN BANC

Pursuant to the direction of the Court of November 22, 1985 
plaintiff-appellant submits his response in opposition to the 
petition for rehearing.

1. With regard to the matters set out in petition itself, 
it does not raise matters that warrant a rehearing or en banc

. The panel correctly evaluated the factual recordconsideration



before it and applied established legal principles to these 
facts. The decision does not conflict with those of other panels 
nor with other courts of appeals.

2. With regard to the inquiry of the Court, appellant 
respectfully urges that the panel decision does not conflict with 
either Snowden v, Hughes, 321 U.S. 1 (1944) or Hewitt v. Helms, 
459 U.S. 460 (1983). Appellant does not urge herein either that 
a mere violation of state law creates a federal constitutional 
claim or that the state procedural protections involved have 
created rights under the Fourteenth Amendment. Rather, he 
contends that the state statute here created a "liberty interest" 
(Hewitt v. Helms, 459 U.S. at 469) in the expectation that 
appellant's contract could not be terminated for cause without 
providing certain procedural safeguards. See, Perry v. Sinderman, 
408 U.S. 593, 602-03 (1972).

The Arkansas statute at issue here (the Teacher Fair 
Dismissal Act of 1979, Acts. Stat. Ann. §§ 80-1264 to 80-1264.10 
(1980) (repealed)) makes, as recognized by the panel, a clear 
distinction between a simple non-renewal of a contract and a 
decision to terminate. Whether or not the reasons for a termi­
nation are published, such an action carries with it an onus by 
the very fact that it is distinguished from a non-renewal. For

2



this reason, the statute requires that certain procedures be 
followed precisely in order to limit "the substantive discretion 
or decision making authority" of school officials.

In other words, school officials can indeed notify a 
teacher that his or her contract will not be renewed without any 
reason or affording any procedures to challenge that decision.
If, however, they decide on the more serious step of termination, 
their decision making authority is restrained by procedures that 
guarantee due process before a higher authority. The failure to 
provide that due process constitutes a denial of the constitution 
because it infringes on an important liberty (and property) 
interest created by state law.

The responsible school official here chose termination and 
initiated that process. The school district cannot now be heard 
to claim that it was all a "mistake" that can be overlooked and 
and its consequences ignored.

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CONCLUSION
For the foregoing reasons the petition for rehearing and for 

rehearing en banc should be denied.

Respectfully submitted,

MARIE-BERNARDE MILLER 
JOHN W. WALKER, P.A.
1723 BroadwayLittle Rock, Arkansas 72206 
(501) 374-3758
JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
THEODORE SHAW 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900
Attorneys for Appellant

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CERTIFICATE OF SERVICE

This is to certify that I have on this 11th day of December 
1985 served a copy of the foregoing on the appellees' counsel of 
record, Mr. G. Ross Smith, 1215 Tower Building, Little Rock, AR
72201 .

Attorney for