In a March 6, 2015 application ("Petition for a Writ of Certiorari") sent to the Supreme Court of the United States, attorneys for 7,500 public school employees fired by local and state education officials after Hurricane Katrina asked the Court to review the October 31, 2014 dismissal of their wrongful termination case by the Supreme Court of Louisiana. Chief Justice Bernette Johnson and Justice Jefferson Hughes of Louisiana's highest court agreed with the district court and unanimous 5- judge appellate court which had ruled in favor of the employees: 1) the Orleans Parish School Board should have placed all tenured employees on a Recall List as mandated by state law and Board Policy; and 2) state education officials should have given state-certified classroom teachers priority consideration for employment at the102 local schools seized by a controversial school takeoverlaw passed after Katrina called "Act 35".
The nine Justices of the U.S. Supreme Court are asked to consider two Federal Questions:
1.Whether tenured public school employees' statutory right to recall and priority consideration for reemployment are constitutionally protected property interests which may not be denied to petitioners without due process of law?
2.Whether the 2014 dismissal of petitioners' 2005 lawsuit is an extreme application of state-law preclusion (res judicata) and inconsistent with Fourteenth Amendment due process rights?
The Supreme Court of Louisiana, in an opinion written by Justice Jeffrey Victory (who has since left the Court), dismissed the employees' 2005 lawsuit based on a 2007 settlement involving a collective bargaining dispute which did not include state and federal due process and property rights of ALL EMPLOYEES (union and non-union) as demanded in this class action lawsuit. According to Justice Victory: "The record does not reveal the exact overlap between the two [union and non-union members in the case below] although the defendants represent that there is a total overlap....If there are any remaining plaintiffs who are non UTNO members, defendants contend that their interests are so closely aligned with the UTNO plaintiffs in the dismissed lawsuits that they were adequately represented by those plaintiffs." (App. 37a)
NOTE: The Attorneys for the employees argued that all parties (union and non-union are entitled to a full day in court on state-law claims. Moreover, "... a substantial number of petitioners were not members of any collective bargaining unit, were neither noticed of nor participated in the collective bargaining arbitration, litigation or settlement."
Citing recent Supreme Court of Louisiana cases, including Ortego v. State Dept. of Transp. and Development , Chief Justice Johnson wrote a compelling Dissent, respectfully disagreeing with the majority of the Supreme Court of Louisiana:
The defendants' res judicata claim was based on a September 18, 2007 settlement agreement between the OPSB and the United Teachers of New Orleans ("UTNO"), which specifically dismissed several lawsuits and arbitration proceedings filed by UTNO asserting violations of their collective bargaining agreements. The majority erroneously finds that the dismissal of these completely separate actions provides a basis for res judicata....It is well established that the doctrine of res judicata is stricti juris, and any doubt concerning the application of the principle must be resolved against its application...
While a valid compromise may form the basis of a plea of res judicata, "a party claiming res Judicata based on a compromise agreement must have been a party to the compromise, and the authority of the thing adjudged extends only to the matters those parties intended to settle...
There is no question that the Oliver class action was not part of the 2007 settlement agreement and that there was no intent to dismiss the class action claims set forth in this class action suit. The 2007 settlement agreement resolved three specific lawsuits and three specific arbitration proceedings between UTNO and the OPSB related to the OPSB's violation of the collective bargaining agreements that were in effect at the time of Hurricane Katrina. [emphasis added by Chief Justice Johnson]
Ortega v. State Dep't of Transp. and Dev., 96-1322 (La. 2/25/97), 689 So. 2d 1358,
The employees' 31-page U. S. Supreme Court application also summarized favorable findings by the District Court Judge, Ethel Simms Julien who presided over the month-long trial held in 2011, and Judge Roland Belsome who wrote the opinion for the Louisiana Court of Appeal:
On January 15, 2014, a unanimous five-judge panel of Louisiana's Court of Appeal, Fourth Circuit agreed with the trial court, holding the OPSB liable for failing to place tenured public school employees on a 2-year Recall List as mandated by Board Policy and state law, and found the State of Louisiana liable for failing to give priority consideration for employment to tenured, certified classroom teachers whose schools were taken over by the state, as mandated by state law. Additionally, sua sponte, the Fourth Circuit revisited a previously settled issue related to res judicata, and whether class members' claims were precluded because the United Teachers of New Orleans union settled grievances that arose out of the mass termination of the 7,500 class members. The 5-0 appellate panel found exceptional circumstances precluded the application of res judicata, finding that the employees received minimal consideration through the Union settlement, and that their claims were never litigated or adjudicated through judicial proceedings. Thereafter, all parties filed writ applications to the Supreme Court of Louisiana, but only the applications of the State Defendants and the OPSB were granted.
On October 31, 2014, in a 5-2 decision with the Chief Justice dissenting, the Supreme Court of Louisiana reversed the appellate court's unanimous holding and ruled that no due process violation occurred. Additionally, the majority found that the application of res judicata did apply, and dismissed Petitioners' entire case. The application of res judicata included the dismissal of Plaintiff Class' severed and unlitigated claim arguing against the constitutionality of Act 35. The effect of the holding resulted in a violation of petitioners' due process and property rights under Article I, §§ 2 and 4 of Louisiana's Constitution and the Fourteenth Amendments of the U.S. Constitution. The dismissal is an extreme application of the doctrine of res judicata and a party's right to have his or her day in court based on several decisions of this Court and other federal circuits.
This Court is asked to grant this writ application.
Public statements regarding no money and no jobs for pre-Katrina employees in New Orleans are refuted in a June 20, 2012 Trial Court Judgment issued by Judge Ethel Simms Julien (Footnote 3, page 3 of the Writ Application):
"Notwithstanding the State Defendants' representation to the U.S. Department of Education that it needed over $770 million to pay the salaries and benefits of out-of work school employees, and the State Defendants' receipt of over $500 million dollars in post-Katrina federal "Restart Funds" based upon this representation, the State Defendants did not ensure that any of this money was used to pay the salaries or benefits of the Plaintiff Class. Rather, the State Defendants diverted these funds to the RSD." (Pages 129 and 162 of Petitioners' Appendix submitted to U.S. Supreme Court)
STATEMENT FROM WILLIE M. ZANDERS, LEAD COUNSEL
All former OPSB employees should know that the march for justice for New Orleans public school
employees is not over! On March 6, 2015, a formal application was sent to the Supreme Court of the United States asking the nine Justices to review whether the local school board and Louisiana education officials violated the due process and property rights of 7500 tenured/state certified public employees.
As we face this new and difficult challenge in our fight for justice, my head is unbowed and my spirit as strong now as in years past when I challenged "separate and unequal education at Grambling College and asking the U.S. Supreme Court to ban Louisiana's LEAP Test when 20,000 4th & 8th Graders were denied promotion in 2001. I believe the takeover of 102 New Orleans Public Schools when students, parents, teachers and voters were under a mandatory evacuation due to Hurricane Katrina was unconstitutional, immoral, and un-American.
On September 15, 2005, my friends Walter Goodwin, Felton Walter and Ronald Coleman were with me at the first School Board meeting after Katrina, held in Baton Rouge and we saw Dr. Ora Watson, New Orleans' Acting Superintendent, in tears after a failed attempt by State Superintendent Cecil Picard and several OPSB members to give her job to the state-selected and controlled financial consultant from New York. Some politicians have since told the media that "the New Orleans Model is about children---not adults and "choice" for parents." How can it be said, that the New Orleans Model is about the children when their experienced teachers, counselors, and coaches were fired and not there to help stressed and depressed students after America's worst natural disaster. In the schools taken over by the state, there were more security guards than school counselors. Just this year, the so-called Recovery School District settled a class action lawsuit for failing to provide federally-mandated services to Special Education students for the past nine years. As to other school personnel who should have been there for children---- cafeteria workers, bus drivers, maintenance staff, and carpenters were replaced by out-of-state, no-bid private contractors when the school workers needed their jobs the most. Ernie Duncan, U.S. Secretary of Education reportedly said Hurricane Katrina was a blessing for public schools in New Orleans. If so, Mr. Duncan owes those Katrina children who are now in the criminal justice system, a formal apology !
Other than filing a lawsuit for violation of the employees' due process and property rights, there was no other way to challenge this wrongful conduct. Nearly ten years later, on page 16 of our application to the U.S. Supreme Court, we explained the "raw politics" behind the November 30, 2005 State takeover of 102 New Orleans Public Schools:
State defendants' "failing schools" argument  was no more than a pretext for the politically-motivated takeover of OPSB schools. More specifically, "On September 21, 2005, [OPSB] President Sanders, while displaced in Charleston, South Carolina, sent an email to "The New Orleans Agenda", an internet-based newsletter, openly complaining about Supt. Picard's efforts to replace Dr. Watson with Mr. Roberti and about a possible takeover of New Orleans Public Schools if Dr. Watson did not step down." (App.133a)
Note: This legal argument is consistent with a short film, https://vimeo.com/107942075about the State takeover produced by an educational research and advocacy group called The New Orleans Education Round Table.
Finally, I honor the memories of former employees who are no longer with us, including one of seven Class Representatives, Gwendolyn Ridgley who is smiling from Heaven. I am well aware of the fact that thousands of class members and their families continue to suffer physically, emotionally, and financially and I thank them for their patience and prayers. From my heart, I thank the founders, attorneys, and staff of several Law Firms who continue to work on this historic case. For anyone who cares, I remain inspired by my faith in God and the lessons I learned from my mother, Lelia Varnado Zanders, who passed in year three of this case. I also thank my family, friends, and people of goodwill (of all races) for their support and words of encouragement. As for the bloggers, who are paid to "muddy the narrative", I'm glad I don't have to do that type of work to survive.
 "When schools opened in August 2005, the School Performance Score (SPS) that designated a school as passing was sixty (60). After Hurricane Katrina, the acceptable School Performance Score increased to 87.5. Consequently, while a score of "60" was "passing" as of August 29, 2005, it was "failing" as of November 30, 2005, the effective date of the State takeover of OPSB Schools. The SPS that designated a school as "passing" reverted to 60 in 2010. " (App. 143a)
Your Alternative Newsletter
News. Arts, Culture & Entertainment
Vincent T. Sylvain, Publisher
The New Orleans Agenda newsletter is the leading local alternative for information on New Orleans and the Gulf Coast Region. A provider of turnkey Web-Based Internet Marketing Services, we specialize in providing outreach and communication services for governmental, faith-based, community, arts & cultural, and professional organizations.