Labor & Employment Law Daily Listing teacher as ‘under investigation’ didn’t implicate protected liberty or property interest
Friday, October 26, 2018

Listing teacher as ‘under investigation’ didn’t implicate protected liberty or property interest

By Joy P. Waltemath, J.D.

Listing a teacher on a public website as “under investigation” for “immoral conduct” (required in certain circumstances under Wisconsin law) does not implicate the loss of a liberty or property interest protected by the Due Process Clause, the Seventh Circuit ruled, and thus a teacher so listed—and later removed from such a list—was not entitled to a name-clearing hearing before publication of the investigation. The majority stressed that the complaint really alleged defamation, nothing further; defamation plus some other injury, like loss of employment, might require a hearing. But the complaint didn’t claim the listing cost the teacher his job; rather, he had already voluntarily resigned and was looking for a new job when he learned of the listing. Although the majority made much of the legal tradition in criminal law that (public) notice of charges always comes well before a hearing, Judge Hamilton, concurring in the dismissal, pointed out that here, the combination of stigma and the delay (17 months under investigation when the Department of Public Instruction told him it could be a year longer before it was completed actually did present “serious due process questions even if Fritz himself is not entitled to relief under federal law” (Fritz v. Evers, October 23, 2018, Easterbrook, F.).

Resignation prompts discovery of being “under investigation.” Taking the facts from the concurring opinion, the teacher resigned from his teaching job in March 2012, learning only when he was turned down for a new teaching job later that month that he had been listed by the Department of Public Instruction as “under investigation.” Under Wisconsin Wis. Stat. § 115.31(3)(a), a school administrator must report a licensed teacher to the Department, which must designate that teacher as “under investigation” on its public website, when: (1) the teacher is charged with one of many serious crimes against children (e.g., sexual assault or child trafficking); (2) the teacher is convicted of such a crime or of fourth degree sexual assault; (3) the teacher is dismissed (or his contract nonrenewed) “based in whole or in part on evidence that the person engaged in immoral conduct;” or (4) the teacher resigns and the administrator has “a reasonable suspicion that the resignation relates to the person having engaged in immoral conduct.”

Former employer’s “reasonable suspicion.” The teacher here was neither charged nor convicted of any such crimes and had resigned from his last teaching job; consequently, the only statutory basis for reporting and him was his former employer’s “reasonable suspicion” that his resignation related to engaging in “immoral conduct.” “Immoral conduct” under the statute includes a teacher’s use of school computers for pornography, assisting child predators with obtaining school positions, or otherwise “endanger[ing] the health, safety, welfare, or education of any pupil” by violating “commonly accepted moral or ethical standards” (§ 115.31(1)(c)1).

Removed from the listing. The majority noted that the complaint was made about him in March 2012 and in August 2013 the Department told the teacher that the report about him was not supported by probable cause to believe that he had engaged in misconduct; his name was removed from the site. The concurrence pointed out, in addition, that this information was revealed only after the teacher learned, in July, from the Department that it would not complete its investigation until at least 2014, two years after the report, after which he hired a lawyer, who requested a hearing (to which he was not entitled), and the Department then made a formal finding in less than three weeks of no probable cause and removed the “under investigation” designation.

No liberty or property interest implicated. The teacher’s suit under 42 U.S.C. §1983 alleged that schools would not hire him while he was under investigation and the state should have afforded him a hearing before putting his name on the list of persons under investigation. Fatal to his claim was the fact that he sued only the superintendent in his official capacity, and §1983 does not authorize awards of damages against states, and a state official (in his official capacity) is the state, said the Seventh Circuit. Plus, defamation by a public official does not violate the Due Process Clause, yet defamation was what the complaint alleged. Had it alleged defamation plus some other injury, such as loss of employment, it might have implicated liberty or property interests, but here all that happened, in the appeals court’s view, was the state had “just provide[d] public notice of an investigation.”

No advance hearing. Finally, the Seventh Circuit dispensed with the teacher’s contention that he should have been given a hearing before public notice that a charge is under investigation. “Yet our legal tradition is notice first, hearing later,” concluded the court. “Wisconsin followed the traditional approach: it conducted an investigation to see whether a formal proceeding was warranted, and after concluding that it was not the state closed the investigation and removed the public listing. It would upset more than two centuries of practice to declare that approach a violation of the Constitution.”

Concurrence. Judge Hamilton wrote separately because of concerns about what happens with Wisconsin’s system for publicizing an investigation of a licensed teacher for “immoral conduct,” pointing out that because a state-issued professional license is at stake, the rule about no defamation by state officials did not necessarily control. In practical effect, Wisconsin’s public designation of a teacher as “under investigation” for suspected “immoral conduct” may inflict a stigma that makes a teacher unemployable until the investigation is resolved. As such, a teacher may well be entitled at least to notice of the charge being investigated and a name-clearing hearing—and within a reasonable time. Although the state claimed it was “simply implausible that anyone could reasonably infer anything of substance” from the designation that a teacher is “under investigation,” the concurring judge was not so sure.

State law requires that a report be made within 15 days after an administrator learns of the basis for the report, but after that, there is no time limit on the department to determine whether probable cause exits and whether to initiate license revocation proceedings. Plus, the department was supposed to “Notify the licensee that an investigation is proceeding, the specific allegations or complaint … and [allow] the licensee [to] respond to the investigator regarding the complaint or allegation.” Allegedly, this teacher never received this notice and was “in limbo indefinitely and did not know why.”

Wisconsin has the power to suspend a teacher’s license, which would require due process, at least notice and a timely and meaningful opportunity to be heard. Calling it “disingenuous” for the state to argue that an “under investigation” designation is not meant to affect a teacher’s status, the judge pointed out that school administrators are told to use the designation when making hiring decisions and are assured the department’s website “will indicate in red type at the top of the page if a person’s license [is] under investigation.” These state powers should include “the responsibility to be fair to teachers, too, which includes complying with state law and resolving these cases promptly,” concluded the concurrence.

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