After negotiations for renewal of a collective bargaining
contract between respondent teachers and petitioner Wisconsin
School Board failed to produce agreement, the teachers went on
strike in direct violation of Wisconsin law. The Board thereafter
conducted individual disciplinary hearings. Through counsel, the
striking teachers advised that they wished to be treated as a
group, and contended that the Board was not sufficiently impartial
properly to discipline them. The Board terminated the striking
teachers' employment, whereupon respondent teachers brought this
suit, contending,
inter alia, that the hearing was
inadequate to meet due process requirements. The state trial court
granted the Board's motion for summary judgment. The Wisconsin
Supreme Court reversed, holding that the procedure followed by the
Board had violated federal due process requirements, since an
impartial decisionmaker was required to resolve the controversy,
and the Board was not sufficiently impartial. Since state law
afforded no adequate remedy, the court provided that, after the
Board's notice to fire a teacher and a hearing, a teacher
dissatisfied with the Board's decision could secure a
de
novo hearing from a county court of record on all issues.
Held: The Due Process Clause of the Fourteenth
Amendment did not guarantee respondent teachers that the decision
to terminate their employment would be made or reviewed by a body
other than the School Board.
Morrissey v. Brewer,
408 U. S. 471,
distinguished. Pp.
426 U. S.
489-497.
(a) The record does not support respondents' contention that the
Board members had a personal or official stake in the dismissal
decision sufficient to disqualify them. Pp.
426 U. S.
491-492.
(b) Mere familiarity with the facts of a case gained by an
agency in the performance of its statutory role does not disqualify
a decisionmaker,
Withrow v. Larkin, 421 U. S.
35,
421 U. S. 47;
FTC v. Cement Institute, 333 U. S. 683,
333 U. S.
700-703, and here, the School Board's participation
pursuant to its statutory duty in the
Page 426 U. S. 483
collective bargaining negotiations was not a disqualifying
factor. Pp.
426 U. S.
492-494.
(c) The School Board, in whom the State has vested the
policymaking function, is the body with the overall responsibility
for governing the school district, and its members are accountable
to the voters for how they discharge their statutory duties, one of
which is to employ and dismiss teachers. Permitting the Board to
make the policy decision at issue here preserves its control over
school district affairs, leaving the balance of power over this
aspect of labor relations where the state legislature has placed
it. Pp.
426 U. S.
495-496.
66 Wis.2d 469,
225 N.W.2d
658, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined.
STEWART, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined,
post, p.
426 U. S.
497.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to determine whether School
Board members, vested by state law with the
Page 426 U. S. 484
power to employ and dismiss teachers, could, consistent with the
Due Process Clause of the Fourteenth Amendment, dismiss teachers
engaged in a strike prohibited by state law.
I
The petitioners are a Wisconsin school district, the seven
members of its School Board, and three administrative employees of
the district. Respondents are teachers suing on behalf of all
teachers in the district and the Hortonville Education Association
(HEA), the collective bargaining agent for the district's
teachers.
During the 1972-1973 school year, Hortonville teachers worked
under a master collective bargaining agreement; negotiations were
conducted for renewal of the contract, but no agreement was reached
for the 1973-1974 school year. The teachers continued to work while
negotiations proceeded during the year without reaching agreement.
On March 18, 1974, the members of the teachers' union went on
strike, in direct violation of Wisconsin law. On March 20, the
district superintendent sent all teachers a letter inviting them to
return to work; a few did so. On March 23, he sent another letter,
asking the 86 teachers still on strike to return, and reminding
them that strikes by public employees were illegal; none of these
teachers returned to work. After conducting classes with substitute
teachers on March 26 and 27, the Board decided to conduct
disciplinary hearings for each of the teachers on strike.
Individual notices were sent to each teacher setting hearings for
April 1, 2, and 3.
On April 1, most of the striking teachers appeared before the
Board with counsel. Their attorney indicated that the teachers did
not want individual hearings, but preferred to be treated as a
group. Although counsel agreed that the teachers were on strike, he
raised several procedural objections to the hearings. He
Page 426 U. S. 485
also argued that the Board was not sufficiently impartial to
exercise discipline over the striking teachers, and that the Due
Process Clause of the Fourteenth Amendment required an independent,
unbiased decisionmaker. An offer of proof was tendered to
demonstrate that the strike had been provoked by the Board's
failure to meet teachers' demands, and respondents' counsel asked
to cross-examine Board members individually. The Board rejected the
request, but permitted counsel to make the offer of proof, aimed at
showing that the Board's contract offers were unsatisfactory, that
the Board used coercive and illegal bargaining tactics, and that
teachers in the district had been locked out by the Board.
On April 2, the Board voted to terminate the employment of
striking teachers, and advised them by letter to that effect.
However, the same letter invited all teachers on strike to reapply
for teaching positions. One teacher accepted the invitation and
returned to work; the Board hired replacements to fill the
remaining positions.
Respondents then filed suit against petitioners in state court,
alleging, among other things, that the notice and hearing provided
them by the Board were inadequate to comply with due process
requirements. The trial court granted the Board's motion for
summary judgment on the due process claim. The court found that the
teachers, although on strike, were still employees of the Board
under Wisconsin law, and that they retained a property interest in
their positions under this Court's decisions in
Perry v.
Sindermann, 408 U. S. 593
(1972), and
Board of Regents v. Roth, 408 U.
S. 564 (1972). The court concluded that the only
question before the Board on April 1 and 2 was whether the teachers
were on strike in violation of state law, and that no evidence in
mitigation was relevant. It rejected their claim that they were
denied due process, since the teachers admitted they were on strike
after receiving adequate notice and a hearing,
Page 426 U. S. 486
including the warning that they were in violation of Wisconsin
law.
On appeal, the Wisconsin Supreme Court reversed, 66 Wis.2d 469,
225 N.W.2d
658 (1975). On the single issue now presented, it held that the
Due Process Clause of the Fourteenth Amendment to the Federal
Constitution required that the teachers' conduct and the Board's
response be evaluated by an impartial decisionmaker other than the
Board. The rationale of the Wisconsin Supreme Court appears to be
that, although the teachers had admitted being on strike, and
although the strike violated Wisconsin law, the Board had available
other remedies than dismissal, including an injunction prohibiting
the strike, a call for mediation, or continued bargaining. Relying
on our holding in
Morrissey v. Brewer, 408 U.
S. 471 (1972), the Wisconsin court then held
"it would seem essential, even in cases of undisputed or
stipulated facts, that an impartial decisionmaker be charged with
the responsibility of determining what action shall be taken on the
basis of those facts."
66 Wis.2d at 493, 225 N.W.2d at 671. The court held that the
Board was not sufficiently impartial to make this choice:
"The background giving rise to the ultimate facts in this case
reveals a situation not at all conducive to detachment and
impartiality on the part of the school board."
Ibid. In reaching its conclusion, the court
acknowledged that the Board's decision could be reviewed in other
forums; but no reviewing body would give the teachers an
opportunity to demonstrate that
"another course of action such as mediation, injunction,
continued collective bargaining or arbitration would have been a
more reasonable response on the part of the decisionmaker."
Id. at 496, 225 N.W.2d at 672.
Since it concluded that state law provided no adequate remedy,
the Wisconsin Supreme Court fashioned one it thought necessary to
comply with federal due process
Page 426 U. S. 487
principles. To leave with the Board "[a]s much control as
possible . . . to set policy and manage the school," the court held
that the Board should, after notice and hearing, make the decision
to fire in the first instance. A teacher dissatisfied with the
Board's decision could petition any court of record in the county
for a
de novo hearing on all issues; the trial court would
"resolve any factual disputes and provide for a reasonable
disposition."
Id. at 498, 225 N.W.2d at 673. The Wisconsin
Supreme Court recognized that this remedy was "not ideal, because a
court may be required to make public policy decisions that are
better left to a legislative or administrative body."
Ibid. But it would suffice
"until such time and only until such time as the legislature
provides a means to establish a forum that will meet the
requirements of due process."
Ibid.
We granted certiorari because of the state court's reliance on
federal due process. 423 U.S. 821 (1975). We reverse.
II
The Hortonville School District is a common school district
under Wisconsin law, financed by local property taxes and state
school aid and governed by an elected seven-member School Board.
Wis.Stat.Ann. § § 120.01, 120.03, 120.06 (1973). The Board has
broad power over "the possession, care, control and management of
the property and affairs of the school district." § 120.12(1);
see also §§ 120.08, 120.10, 120.15-120.17. The Board
negotiates terms of employment with teachers under the Wisconsin
Municipal Employment Relations Act, § 111.70
et seq.
(1974), and contracts with individual teachers on behalf of the
district. The Board is the only body vested by statute with the
power to employ and dismiss teachers. § 118.22(2). [
Footnote 1]
Page 426 U. S. 488
The sole issue in this case is whether the Due Process Clause of
the Fourteenth Amendment prohibits this School Board from making
the decision to dismiss teachers admittedly engaged in a strike and
persistently refusing to return to their duties. [
Footnote 2] The Wisconsin Supreme Court held
that state law prohibited the strike, and that termination of the
striking teachers' employment was within the Board's statutory
authority. 66 Wis.2d at 47981, 225 N.W.2d at 663-665. We are, of
course, bound to accept the interpretation of Wisconsin law by the
highest court of the State.
Groppi v. Wisconsin,
400 U. S. 505,
400 U. S. 507
(1971);
Kingsley Pictures Corp. v. Regents, 360 U.
S. 684,
360 U. S. 688
(1959). The only decision remaining for the Board therefore
involved the exercise of its discretion as to what should be done
to carry out the duties the law placed on the Board.
Page 426 U. S. 489
A
Respondents argue, and the Wisconsin Supreme Court held, that
the choice presented for the Board's decision is analogous to that
involved in revocation of parole in
Morrissey v. Brewer,
supra, that the decision could be made only by an impartial
decisionmaker, and that the Board was not impartial. In
Morrissey, the Court considered a challenge to state
procedures employed in revoking the parole of state prisoners.
There we noted that the parole revocation decision involved two
steps: first, an inquiry whether the parolee had in fact violated
the conditions of his parole; second, determining whether the
violations found were serious enough to justify revocation of
parole and the consequent deprivation of the parolee's conditional
liberty. With respect to the second step, the Court observed:
"The second question involves the application of expertise by
the parole authority in making a prediction as to the ability of
the individual to live in society without committing antisocial
acts. This part of the decision, too, depends on facts, and
therefore it is important for the board to know not only that some
violation was committed, but also to know accurately how many and
how serious the violations were. Yet this second step, deciding
what to do about the violation once it is identified, is not purely
factual, but also predictive and discretionary."
408 U.S. at
408 U. S. 480.
Nothing in this case is analogous to the first step in
Morrissey, since the teachers admitted to being on strike.
But respondents argue that the School Board's decision in this case
is, for constitutional purposes the same as the second aspect of
the decision to revoke parole. The Board cannot make a "reasonable"
decision on this issue, the Wisconsin Supreme Court held and
respondents argue,
Page 426 U. S. 490
because its members are biased in some fashion that the due
process guarantees of the Fourteenth Amendment prohibit. [
Footnote 3]
Morrissey arose in a materially different context. We
recognized there that a parole violation could occur at a place
distant from where the parole revocation decision would finally be
made; we also recognized the risk of factual error, such as
misidentification. To minimize this risk, we held:
"[D]ue process requires that, after the
Page 426 U. S. 491
arrest [for parole violation], the determination that reasonable
ground exists for revocation of parole should be made by someone
not directly involved in the case."
Id. at
408 U. S. 485.
But this holding must be read against our earlier discussion in
Morrissey of the parole officer's role as counselor for
and confidant of the parolee; it is this same officer who, on the
basis of preliminary information, decides to arrest the parolee. A
school board is not to be equated with the parole officer as an
arresting officer; the school board is more like the parole board,
for it has ultimate plenary authority to make its decisions derived
from the state legislature. General language about due process in a
holding concerning revocation of parole is not a reliable basis for
dealing with the School Board's power as an employer to dismiss
teachers for cause. We must focus more clearly on, first, the
nature of the bias respondents attribute to the Board, and, second,
the nature of the interests at stake in this case.
B
Respondents' argument rests in part on doctrines that have no
application to this case. They seem to argue that the Board members
had some personal or official stake in the decision whether the
teachers should be dismissed, comparable to the stake the Court saw
in
Tumey v. Ohio, 273 U. S. 510
(1927), or
Ward v. Village of Monroeville, 409 U. S.
57 (1972);
see also Gibson v. Berryhill,
411 U. S. 564
(1973), and that the Board has manifested some personal bitterness
toward the teachers, aroused by teacher criticism of the Board
during the strike,
see, e.g., Taylor v. Hayes,
418 U. S. 488
(1974);
Mayberry v. Pennsylvania, 400 U.
S. 455 (1971). Even assuming that those cases state the
governing standards when the decisionmaker is a public employer
dealing with employees, the teachers did not show, and the
Wisconsin courts did not find, that the Board members
Page 426 U. S. 492
had the kind of personal or financial stake in the decision that
might create a conflict of interest, and there is nothing in the
record to support charges of personal animosity. The Wisconsin
Supreme Court was careful
"not to suggest . . . that the board members were anything but
dedicated public servants, trying to provide the district with
quality education . . . within its limited budget."
66 Wis.2d at 494, 225 N.W.2d at 671. That court's analysis would
seem to be confirmed by the Board's repeated invitations for
striking teachers to return to work, the final invitation being
contained in the letter that notified them of their discharge.
[
Footnote 4]
The only other factor suggested to support the claim of bias is
that the School Board was involved in the negotiations that
preceded and precipitated the striking teachers' discharge.
Participation in those negotiations was a statutory duty of the
Board. The Wisconsin Supreme Court held that this involvement,
without more,
Page 426 U. S. 493
disqualified the Board from deciding whether the teachers should
be dismissed:
"The board was the collective bargaining agent for the school
district, and thus was engaged in the collective bargaining process
with the teachers' representative, the HEA. It is not difficult to
imagine the frustration on the part of the board members when
negotiations broke down, agreement could not be reached and the
employees resorted to concerted activity. . . . They were . . . not
uninvolved in the events which precipitated decisions they were
required to make."
Id. at 493-494, 225 N.W.2d at 671. Mere familiarity
with the facts of a case gained by an agency in the performance of
its statutory role does not, however, disqualify a decisionmaker.
Withrow v. Larkin, 421 U. S. 35,
421 U. S. 47
(1975);
FTC v. Cement Institute, 333 U.
S. 683,
333 U. S.
700-703 (1948). Nor is a decisionmaker disqualified
simply because he has taken a position, even in public, on a policy
issue related to the dispute, in the absence of a showing that he
is not "capable of judging a particular controversy fairly on the
basis of its own circumstances."
United States v. Morgan,
313 U. S. 409,
313 U. S. 421
(1941);
see also FTC v. Cement Institute, supra at
333 U. S.
701.
Respondents' claim and the Wisconsin Supreme Court's holding
reduce to the argument that the Board was biased because it
negotiated with the teachers on behalf of the school district
without reaching agreement and learned about the reasons for the
strike in the course of negotiating. From those premises, the
Wisconsin court concluded that the Board lost its statutory power
to determine that the strike and persistent refusal to terminate it
amounted to conduct serious enough to warrant discharge of the
strikers. Wisconsin statutes
Page 426 U. S. 494
vest in the Board the power to discharge its employees, a power
of every employer, whether it has negotiated with the employees
before discharge or not. The Fourteenth Amendment permits a court
to strip the Board of the otherwise unremarkable power the
Wisconsin Legislature has given it only if the Board's prior
involvement in negotiating with the teachers means that it cannot
act consistently with due process.
C
Due process, as this Court has repeatedly held, is a term that
"negates any concept of inflexible procedures universally
applicable to every imaginable situation."
Cafeteria Workers v.
McElroy, 367 U. S. 886,
367 U. S. 895
(1961). Determining what process is due in a given setting requires
the Court to take into account the individual's stake in the
decision at issue, as well as the State's interest in a particular
procedure for making it.
See Mathews v. Eldridge,
424 U. S. 319
(1976);
Arnett v. Kennedy, 416 U.
S. 134,
416 U. S. 168
(1974) (POWELL, J., concurring);
id. at
416 U. S. 188
(WHITE, J., concurring and dissenting);
Goldberg v. Kelly,
397 U. S. 254,
397 U. S.
263-266 (1970). Our assessment of the interests of the
parties in this case leads to the conclusion that this is a very
different case from
Morrissey v. Brewer, and that the
Board's prior role as negotiator does not disqualify it to decide
that the public interest in maintaining uninterrupted classroom
work required that teachers striking in violation of state law be
discharged.
The teachers' interest in these proceedings is, of course,
self-evident. They wished to avoid termination of their employment,
obviously an important interest, but one that must be examined in
light of several factors. Since the teachers admitted that they
were engaged in a work stoppage, there was no possibility of an
erroneous factual determination on this critical threshold issue.
Moreover,
Page 426 U. S. 495
what the teachers claim as a property right was the expectation
that the jobs they had left to go and remain on strike in violation
of law would remain open to them. The Wisconsin court accepted at
least the essence of that claim in defining the property right
under state law, and we do not quarrel with its conclusion. But
even if the property interest claimed here is to be compared with
the liberty interest at stake in
Morrissey, we note that
both "the risk of an erroneous deprivation" and "the degree of
potential deprivation" differ in a qualitative sense and in degree
from those in
Morrissey. Mathews v. Eldridge,
supra at
424 U. S.
341.
The governmental interests at stake in this case also differ
significantly from the interests at stake in
Morrissey.
The Board's decision whether to dismiss striking teachers involves
broad considerations, and does not, in the main, turn on the
Board's view of the "seriousness" of the teachers' conduct or the
factors they urge mitigated their violation of state law. It was
not an adjudicative decision, for the Board had an obligation to
make a decision based on its own answer to an important question of
policy: what choice among the alternative responses to the
teachers' strike will best serve the interests of the school
system, the interests of the parents and children who depend on the
system, and the interests of the citizens whose taxes support it?
The Board's decision was only incidentally a disciplinary decision;
it had significant governmental and public policy dimensions as
well.
See Summers, Public Employee Bargaining: A Political
Perspective, 83 Yale L.J. 1156 (1974).
State law vests the governmental, or policymaking, function
exclusively in the School Board, and the State has two interests in
keeping it there. First, the Board is the body with overall
responsibility for the governance of the school district; it must
cope with the myriad day-to-day
Page 426 U. S. 496
problems of a modern public school system including the severe
consequences of a teachers' strike; by virtue of electing them, the
constituents have declared the Board members qualified to deal with
these problems, and they are accountable to the voters for the
manner in which they perform. Second, the state legislature has
given to the Board the power to employ and dismiss teachers, as a
part of the balance it has struck in the area of municipal labor
relations; altering those statutory powers as a matter of federal
due process clearly changes that balance. Permitting the Board to
make the decision at issue here preserves its control over school
district affairs, leaves the balance of power in labor relations
where the state legislature struck it, and assures that the
decision whether to dismiss the teachers will be made by the body
responsible for that decision under state law. [
Footnote 5]
III
Respondents have failed to demonstrate that the decision to
terminate their employment was infected by the sort of bias that we
have held to disqualify other decisionmakers as a matter of federal
due process. A
Page 426 U. S. 497
showing that the Board was "involved" in the events preceding
this decision, in light of the important interest in leaving with
the Board the power given by the state legislature, is not enough
to overcome the presumption of honesty and integrity in
policymakers with decisionmaking power.
Cf. Withrow v.
Larkin, 421 U.S. at
421 U. S. 47.
Accordingly, we hold that the Due Process Clause of the Fourteenth
Amendment did not guarantee respondents that the decision to
terminate their employment would be made or reviewed by a body
other than the School Board.
The judgment of the Wisconsin Supreme Court is reversed, and the
case is remanded for further proceedings not inconsistent with this
opinion.
Reversed and remanded.
[
Footnote 1]
The National School Boards Association informs us that 45 States
lodge the power to dismiss teachers in local school boards. Brief
as
Amicus Curiae 9 n. 4.
[
Footnote 2]
The Wisconsin Supreme Court held that the discharge of the
teachers during their 1973-1974 individual contracts, and the
revocation of the Board's individual offers of employment for the
1974-1975 school year, deprived them of property. 66 Wis.2d 469,
489,
225 N.W.2d
658, 669 (1975).
"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. . . ."
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 577
(1972). We do not challenge the Wisconsin Supreme Court's
conclusion that state law gave these teachers a "legitimate claim
of entitlement to job tenure."
Perry v. Sindermann,
408 U. S. 593,
408 U. S. 602
(1972).
We are not required to determine whether the notice and hearing
afforded by the Board, as matters separate from the Board's ability
fairly to decide the issue before it, were adequate to afford
respondents due process. Respondents do not suggest here that the
notice they received was constitutionally inadequate, and they
refused to treat the dismissals on a case-by-case basis.
[
Footnote 3]
Respondents argue that the requirement that the Board's decision
be "reasonable" is, in fact, a requirement of state law. From that
premise, and from the premise that the "reasonableness"
determination requires an evaluation of the Board's negotiating
stance, they argue that nothing but decision and review
de
novo by an "uninvolved" party will secure their right to a
"reasonable" decision.
See Withrow v. Larkin, 421 U. S.
35,
421 U. S. 58-59,
n. 25 (1975). It is clear, however, that the Wisconsin Supreme
Court held that the Board's decision must be "reasonable" not by
virtue of state law, but because of its reading of the Due Process
Clause of the Fourteenth Amendment. First, the Wisconsin court
relied largely upon cases interpreting the Federal Constitution in
this aspect of its holding.
See 66 Wis.2d at 493, 225
N.W.2d at 671. Second, the only state case the Wisconsin Supreme
Court cited for more than a general statement of federal
requirements was
Durkin v. Board of Police & Fire
Comm'rs, 48 Wis.2d 112,
180 N.W.2d 1
(1970). There, the Wisconsin Supreme Court interpreted a state
statute that gave firemen and policemen the right to appeal a
decision of the Board of Police and Fire Commissioners to a state
court; the statute expressly provided that the court was to
determine whether, "upon the evidence, the order of the Board was
reasonable."
Id. at 117, 180 N.W.2d at 3.
See
Wis.Stat.Ann. § 62.13(5)(h) (1957). There is no comparable
statutory provision giving teachers the right to review this
standard. Finally, to impose a "reasonableness" requirement, or any
other test that looks to evaluation by another entity, makes
semantic sense only where review is contemplated by the statute.
Review, and the standard for review, are concepts that go hand in
hand. The Wisconsin Supreme Court concluded both that review of the
Board's decision was necessary, and that a "reasonableness"
standard was appropriate as a result of its reading of the Due
Process Clause of the Fourteenth Amendment.
[
Footnote 4]
Respondents alleged before the Board, and argue here, that the
Board's decision to dismiss them was motivated by antiunion animus
in addition to personal vindictiveness, and that their illegal
strike should be excused because the Board provoked it. The
Wisconsin Supreme Court suggested that the Board's "decision to
discharge was possibly a convenient alternative which would
eliminate their labor problems in one fell swoop." 66 Wis.2d at
494, 225 N.W.2d at 671. Given that Wisconsin statutes permitted the
Board to dismiss striking teachers, and assuming, as did the
Wisconsin court, that the Board's decision was in other respects
proper under state labor law, we do not agree that federal due
process prevented the Board from pursuing a course of action that
was within its explicit statutory authority and which, in its
judgment, would serve the best interests of the school system. That
the result may also have been desirable for other reasons is
irrelevant to the due process issue on which the Wisconsin Supreme
Court's decision turned, and, if the other reasons are invalid
under state law, respondents can resort to whatever forum the State
provides.
[
Footnote 5]
Respondents argue that the School Board is free to defend its
action in the
de novo hearing authorized by the Wisconsin
Supreme Court by attempting to demonstrate that policy
considerations dictated its decision to dismiss the striking
teachers. Policymaking is a process of prudential judgment, and we
are not prepared to say that a judge can generally make a better
policy judgment or, in this case, as good a judgment as the School
Board, which is intimately familiar with all the needs of the
school district, or that a school board must, at the risk of
suspending school operations, wend its way through judicial
processes not mandated by the legislature. More important, no
matter what arguments the Board may make to the
de novo
trial judge, as we noted earlier, it will be the School Board that
will have to cope with the consequences of the decision and be
responsible to the electorate for it. The privilege of oral
argument to a judge is no substitute for the power to employ and
dismiss vested by statute exclusively in the Board.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.
The issue in this case is whether the discharge of the
respondent teachers by the petitioner School Board violated the Due
Process Clause of the Fourteenth Amendment because the Board
members were not impartial decisionmakers. It is now well
established that
"a biased decisionmaker [is] constitutionally unacceptable,
[and] 'our system of law has always endeavored to prevent even the
probability of unfairness.'"
Withrow v. Larkin, 421 U. S. 35,
421 U. S. 47,
quoting
In re Murchison, 349 U. S. 133,
349 U. S.
136.
In order to ascertain whether there is a constitutionally
unacceptable danger of partiality, both the nature of the
particular decision and the interest of the decisionmaker in its
outcome must be examined. Here, Wisconsin law controls the factors
that must be found before a teacher may be discharged for striking.
The parties present sharply divergent views of what the Wisconsin
law requires. The petitioners claim that the decision to
Page 426 U. S. 498
discharge a striking teacher is a policy matter entrusted to the
discretion of the local school board, whereas the respondents
contend that a striking teacher cannot be discharged unless that
sanction is reasonable in view of the circumstances culminating in
the strike.
The Court acknowledges, as it must, that it is "bound to accept
the interpretation of Wisconsin law by the highest court of the
State."
Ante at
426 U. S. 488.
Yet it then proceeds to reverse that court by assuming, as the
petitioners urge, that, under Wisconsin law, the determination to
discharge the striking teachers only "involved the [Board's]
exercise of its discretion as to what should be done to carry out
the duties the law placed on the Board."
Ibid. It
dismisses the respondents' version of Wisconsin law in a footnote.
Ante at
426 U. S. 490
n. 3.
But the fact is that the Wisconsin Supreme Court has not clearly
delineated the state law criterion that governs the discharge of
striking teachers, and this Court is wholly without power to
resolve that issue of state law. I would therefore remand this case
to the Wisconsin Supreme Court for it to determine whether, on the
one hand, the School Board is charged with considering the
reasonableness of the strike in light of its own actions, or is, on
the other, wholly free, as the Court today assumes, to exercise its
discretion in deciding whether to discharge the teachers.
Under the petitioners' view of the Wisconsin law, the discharge
determination is purely a policy judgment involving an assessment
of the best interest of the school system. Since that judgment does
not require the Board to assess its own conduct during the
negotiations, and since there is no indication that the Board
members have a financial or personal interest in its outcome, the
only basis for a claim of partiality rests on the Board's knowledge
of the events leading to the strike acquired through its
participation in the negotiation process. As
Page 426 U. S. 499
the Court notes, however,
"[m]ere familiarity with the facts of a case gained by an agency
in the performance of its statutory role does not . . . disqualify
a decisionmaker."
Ante at
426 U. S.
493.
But a distinctly different constitutional claim is presented if,
as the respondents contend, the School Board members must evaluate
their own conduct in determining whether dismissal is a reasonable
sanction to impose on the striking teachers. Last Term, in
Withrow v. Larkin, supra, the Court noted that "[a]llowing
a decisionmaker to review and evaluate his own prior decisions
raises problems that are not present" where the bias issue rests
exclusively on familiarity with the facts of a case. 421 U.S. at
421 U. S. 58 n.
25. Apart from considerations of financial interest or personal
hostility, the Court has found that officials "directly involved in
making recommendations cannot always have complete objectivity in
evaluating them."
Morrissey v. Brewer,
408 U.
S. 471,
408 U. S. 486.
See Goldberg v. Kelly, 397 U. S. 254.
"[U]nder a realistic appraisal of psychological tendencies and
human weakness,"
Withrow v. Larkin, supra at
421 U. S. 47, I
believe that there is a constitutionally unacceptable danger of
bias where school board members are required to assess the
reasonableness of their own actions during heated contract
negotiations that have culminated in a teachers' strike. If,
therefore, the respondents' interpretation of the state law is
correct, then I would agree with the Wisconsin Supreme Court that
"the board was not an impartial decisionmaker in a constitutional
sense, and that the [teachers] were denied due process of law." 66
Wis.2d 469, 494,
225 N.W.2d
658, 671.
For the reasons stated, I would vacate the judgment before us
and remand this case to the Supreme Court of Wisconsin.