By Gretchen Schuldt
Mark Fritz could not find a job as a teacher after the State Department of Public Instruction posted on its public website that he was "under investigation" for immoral conduct.
He couldn't find out what was in the report, which was submitted by the Racine Unified School District. DPI wouldn't tell him.
This went on for 17 months.
Then, shortly after he hired a lawyer and demanded a hearing, DPI cleared his name and removed it from public purgatory.
And now the Seventh Circuit Court of Appeals has ruled that Fritz's due process rights were not violated.
In a concurrence, though, U.S. Circuit Judge David Hamilton suggested the state may face due process problems in the future. The public identification of a teacher under investigation for immoral conduct can render that teacher unemployable until the investigation is resolved, he said.
"If that’s correct, the teacher may well be entitled at least to notice of the charge being investigated and a name‐clearing hearing – and within a reasonable time," he wrote.
Fritz resigned from his teaching job in March 2012. He learned later that month, and only when he was turned down for another job, that DPI had listed him as "under investigation."
State law requires DPI to "post on the department's Internet site the name of the licensee who is under investigation" if a complaint is made against an individual.
"For the next 17 months, he was in legal limbo: he was practically un‐hirable, yet he was un‐ able to discover why he was under investigation, and had no idea when it might end," Hamilton wrote.
Wisconsin Administrative Code requires DPI to notify the person under investigation of the specific allegations and allow that person a chance to respond, he said.
"Fritz alleges here that he did not receive the required notice," Hamilton said. "As a result, Fritz was in limbo indefinitely and did not know why."
In addition, state law requires the administrator making the immoral conduct report to send a copy to the person named in it.
In July 2013, DPI told Fritz it would not complete its investigation until at least 2014, two years after the initial report from the Racine School District. Fritz hired a lawyer, who requested a hearing, though Fritz was not statutorily entitled to one.
Presto! Less than three weeks later, DPI found that there was no probable cause to revoke Friz's license and removed his name from the "under investigation" list.
Fritz sued Superintendent of Public Instruction Tony Evers (now governor-elect), alleging the state should have provided him the opportunity for a hearing before putting his name on the list.
Fritz erred first in naming only Evers, in his official capacity, as a defendant, U.S. Circuit Judge Frank H. Easterbrook wrote in the decision rejecting the suit. Federal law does not allow damages against states, and "a state official (in his official capacity) is the state," he wrote.
In addition, he said, defamation by a public official, which Fritz alleged, does not violate due process, and DPI was not obligated to provide Fritz with a hearing before launching an investigation.
Easterbrook was joined in his opinion by U.S. Circuit Judge Michael Y. Scudder.
Hamilton, while agreeing that Fritz's suit must be dismissed, also dismissed the state's contention that "the category of 'immoral conduct' is merely an 'administrative label' 'devoid of any stigmatizing sub‐ stance.' ”
"The state’s assertion loses sight of the statutory details and of real life," he said, adding later: "To use an example from the state’s brief, what administrator in her right mind, in deciding to hire a new teacher, would cross her fingers and hope that a teacher under investigation might have only given a cigarette to a high‐school student when it is possible he engaged in sexual activity with a child?"
"Wisconsin undoubtedly has the power and duty to license teachers and so to act as the gatekeeper to state education employment," Hamilton wrote. "With that power comes the responsibility to be fair to teachers, too, which includes complying with state law and resolving these cases promptly. If another teacher has an experience under this system similar to Fritz’s, it might add up to a federal due process violation, calling at least for timely injunctive relief. ...But complying with state law would go a long way toward avoiding such problems."
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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