Kasha Lapointe v. Vermilion Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 14-919

KASHA LAPOINTE

VERSUS

VERMILION PARISH SCHOOL BOARD, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 98078
HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE

OPINION ON REMAND

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED AND REMANDED.

Calvin Eugene Woodruff, Jr.
Cooper & Woodruff
P.O. Drawer 520
Abbeville, LA 70511
(337) 898-5777
COUNSEL FOR DEFENDANT/APPELLEE:
Vermilion Parish School Board

Brian Francis Blackwell
Blackwell and Associates
2600 Citiplace Dr., Suite 525
Baton Rouge, LA 70808
(225) 769-2462
COUNSEL FOR PLAINTIFF/APPELLANT:
Kasha Lapointe

Jimmy R. Faircloth, Jr.
Christie C. Wood
Faircloth, Melton & Keiser, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
COUNSEL FOR INTERVENOR/APPELLEE:
State of Louisiana

EZELL, Judge.

We consider this matter on remand from the supreme court following its

decision in LaPointe v. Vermilion Parish School Board, 15-432 (La. 6/30/15), ___

So.3d ___. In its remand to this court, the supreme court ordered that we consider

the issue of Kasha LaPointe‟s as-applied constitutional challenge to La.R.S. 17:443

as amended by Section 3 of Act 1 of the 2012 Regular Session of the Louisiana

Legislature. For the following reasons, we affirm the judgment of the trial court

and remand this matter for further proceedings.

FACTS

Ms. LaPointe filed this lawsuit challenging the constitutionality of La.R.S.

17:443 as amended by Section 3 of Act 1 of the 2012 Regular Session of the

Louisiana Legislature after she was fired from her job as a teacher. The facts of

this matter were fully addressed in both our prior opinion, LaPointe v. Vermilion

Parish School Board, 14-919 (La.App. 3 Cir. 2/4/15), 158 So.3d 257, and the

supreme court‟s opinion. Both this court and the supreme court recognized that

Ms. LaPointe enjoyed a vested property right as a tenured teacher entitling her to

due process before deprivation of such a right. This court found that La.R.S.

17:443 as amended by Section 3 of Act 1 of the 2012 Regular Session of the

Louisiana Legislature was facially unconstitutional because it does not afford a full

evidentiary hearing before a neutral adjudicator prior to termination of a tenured

public school teacher.

In reversing our decision, the supreme court held that:

La.Rev.Stat. 17:443 as amended by Act 1 of 2012 provides sufficient
due process to protect the tenured teacher‟s vested employment rights.
This statute provides for one pre-termination opportunity to respond
to the charges, and two post-termination hearings. At the first of these
post-termination hearings, the teacher may present evidence to build

his or her case before a tenure hearing panel, which then makes a
recommendation to the superintendent; at the second, she may seek
judicial review of the superintendent‟s decision. If the judge
determines the superintendent‟s decision to terminate or not reinstate
the teacher‟s employment was arbitrary or capricious, the teacher shall
be entitled to reinstatement and full back pay. Given these
requirements before and after termination, we find Act 1 of 2012 on
its face provided sufficient due process protections to the tenured
teacher.

LaPointe, ___ So.3d at ___. The supreme court then remanded the matter to this

court to consider Ms. LaPointe‟s as-applied constitutional challenge to the statute.

DISCUSSION

Ms. LaPointe argues that the application of La.R.S. 17:443, as amended by

Act 1, violated her due process rights guaranteed by the 14th Amendment to the

United States Constitution and Article I, § 2 of the Louisiana Constitution of 1974.

Relying on Wilson v. City of New Orleans, 479 So.2d 891 (La.1985), Ms. LaPointe

argues that she was deprived of an unbiased tribunal and the right to call witnesses.

Regarding her right to an unbiased tribunal, Ms. LaPointe specifically

alleges that the superintendent was personally involved in each and every stage of

the proceedings, which kept him from being a neutral and detached decision-maker.

She specifically alleges that the superintendent personally investigated the

allegations when he reviewed a videotape after the due process hearing, which he

specifically relied on in terminating her. Ms. LaPointe further argues that the

superintendent refused to consider other relevant evidence, such as a doctor‟s

excuse or her worth as a school teacher. Regarding the pre-termination hearing,

Ms. LaPointe claims that her due process rights were violated because she was not

allowed to bring witnesses to the meeting, provide documentary evidence at the

meeting, or bring any member of the public with her to that meeting.

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A facial attack is typically described as one where “no application of
the statute would be constitutional.” In contrast, courts define an as-
applied challenge as one “under which the plaintiff argues that a
statute, even though generally constitutional, operates
unconstitutionally as to him or her because of the plaintiff‟s particular
circumstances.”

Alex Kreit, Making Sense of Facial and As-Applied Challenges, 18 Wm. & Mary

Bill Rts. J. 657 (2010) (footnote omitted). An as-applied challenge “only

overturn[s] the application of the statute in the case at hand.” Id. at 658.

We initially observe that Ms. LaPointe‟s as-applied challenges appear

strikingly similar to her facial constitutional challenge to La.R.S. 17:443. Ms.

LaPointe argued that the procedure set forth in La.R.S 17:443 denied her the right

to a pre-termination hearing and placed too much authority with the superintendent

in the termination process.

A plaintiff can bring an as-applied constitutional challenge even if the law

was upheld under a facial challenge. In re Cao, 619 F.3d 410 (5th Cir. 2010), cert.

denied, 562 U.S. 1286, 131 S.Ct. 1718 (2011). “[A] plaintiff cannot successfully

bring an as-applied challenge to a statutory provision based on the same factual

and legal arguments the Supreme Court expressly considered when rejecting a

facial challenge to that provision.” Id. at 430.

However, we find that Ms. LaPointe‟s arguments are not properly

characterized as as-applied constitutional challenges. Rather, the issues that are

now before this court concern the manner in which the statute was implemented by

the Vermilion Parish School Board and how its misapplication of the statute

violated her substantive and procedural due process rights.

In his concurring opinion in Seling v. Young, 531 U.S. 250, 271, 121 S.Ct.

727, 739 (2001) (emphasis and alterations in original) (quoting United States v.

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Christian Echoes National Ministry, Inc., 404 U.S. 561, 565, 92 S.Ct. 663, 666

(1972)), Justice Thomas explained that: “Typically an „as-applied‟ challenge is a

claim that a statute, „by its own terms, infringe[s] constitutional freedoms in the

circumstances of [a] particular case.‟” Justice Thomas went on to explain that it

was his position that the respondent‟s claim in that case was not that the statute

„“by its own terms‟” was unconstitutional as applied to the respondent, but rather

that the statute was not being applied according to its terms at all. Id.

Such is the case with Ms. LaPointe‟s arguments in the case at hand. Ms.

LaPointe is not attacking the statutory scheme of La.R.S. 17:443 and arguing that

its application in a proper manner is unconstitutional as applied to her particular

situation and the facts. Instead, she is attacking the manner in which the Vermilion

Parish School Board proceeded with her termination under La.R.S. 17:443, arguing

that its actions violated her due process rights.

The supreme court has already determined that the termination procedure

provided by Act 1 provides sufficient due process, allowing Ms. LaPointe to

present evidence, by holding:

Because Act 1 requires notice and an opportunity to respond in
writing before termination, it provides sufficient opportunity to the
tenured teacher to respond to the charges against her. The statute,
moreover, does not limit the manner of a teacher‟s pre-deprivation
response, as she may respond in person or in writing, present evidence,
and be represented by an attorney. . . . We find the pre-termination
process permitted by act 1 of 2012 is sufficient to give the teacher
notice of the charges against her and a meaningful opportunity to
respond.

LaPointe, ___ So.3d at ___.

The supreme court further found that under the procedures of Act 1, the

superintendent is a neutral and detached decision maker stating:

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We do not find the post-termination procedures set forth in Act
1 of 2012 to be either meaningless or lacking in sufficient due process
protections. Although the plaintiff suggests the superintendent is
effectively both the prosecutor and the adjudicator, which we have
said may violate an individual‟s due process rights, see Allen v.
Louisiana State Bd. of Dentistry, 543 So.2d 908 (La.1989), such a
situation is not presented in the procedures set forth in Act 1. There is
no suggestion in these procedures that the superintendent operates as
the prosecutor before the hearing panel. Moreover, while the
superintendent is not bound to follow the considered recommendation
of a majority of the hearing panel, the superintendent‟s decision is
judicially reviewable under Act 1. The statute provides, if the
superintendent chooses not to reinstate the teacher following the
recommendation of the panel, the superintendent shall notify the
teacher of his final determination, in writing, and the teacher may,
within sixty days thereof, petition a court of competent jurisdiction to
review whether the action of the superintendent was arbitrary or
capricious. La.Rev.Stat. 17:443(B)(2) (as amended by Act 1 of 2012).

Id. at __.

The issues raised by Ms. LaPointe in the present case are not as-applied

constitutional challenges. Instead, her arguments concern whether the Vermilion

Parish School Board violated her substantive and procedural due process rights in

failing to follow Act 1 according to its terms. These issues should first be

presented to the trial court as contemplated by La.R.S. 17:443(A)(2).

As noted by the supreme court, “[n]o judicial review of the termination itself

has been conducted at this point, owing to the ongoing constitutional challenge.”

LaPointe, ___ So.3d at ___. The supreme court further observed that:

The record before us does not contain any of the exhibits or transcripts
filed in the record below with regard to the Petition for Judicial
Review, namely the so-called „charge letter‟ dated August 16, 2013,
the termination letter dated September 9, 2013, or the transcript of the
proceedings before the tenure hearing panel, including any exhibits
filed in evidence during that hearing.

Id. at ___, fn 1.

Therefore, the trial court still has issues to decide in this case, including the

arguments Ms. LaPointe now raises. A remand will also provide the opportunity

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for the introduction of evidence to develop the particular facts and circumstances

of the case needed to determine whether Ms. LaPointe‟s substantive and

procedural due process rights were violated by the Vermilion Parish School Board

in the implementation of Act 1.

Based on our finding that the issues raised by Ms. LaPointe as as-applied

constitutional challenges to Act 1 are in reality challenges to the Vermilion Parish

School Board‟s implementation of Act 1, we affirm the judgment of the trial court.

We remand this case to the trial court for further proceedings in the consolidated

and still pending Petition for Judicial Review. Costs of this appeal are assessed to

Kasha LaPointe.

AFFIRMED AND REMANDED.

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