Harris v. Victoria Independent School District ( 1999 )

Revised March 12, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-41015
DWIGHT HARRIS; GENE MARTIN,
Plaintiffs - Appellants,
VERSUS
VICTORIA INDEPENDENT SCHOOL DISTRICT; PAUL KORNFUEHRER, in his
official and individual capacities; CLAY CAIN, in his official and
individual capacities; IVAN GREEN, in his official and individual
capacities; RANDY POLLARD, in his official and individual
capacities; MARGARET EASLEY, in her official capacity only; REUBAN
MURRAY, in his official capacity only; THERESA GUITIERREZ, in her
official capacity only; ROBERT P BREZINA, in his official and
individual capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Texas
March 4, 1999
Before SMITH, DUHÉ, AND WIENER, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
This appeal arises from the reprimand and transfer of two
teachers at Victoria High School (“VHS”), Dwight Harris and Gene
Martin (collectively “Plaintiffs”), as a result of their speech at
a December 8, 1995 committee meeting. Robert Brezina,
Superintendent of the Victoria Independent School District
(“VISD”), reprimanded the Plaintiffs and transferred them to
different campuses during the 1994-95 school year because of their
speech. After the VISD Board of Trustees affirmed Superintendent
Brezina’s decision, the Plaintiffs sued Brezina, members of the
Board1, and VISD (collectively “Defendants”), alleging that they
were transferred and reprimanded in violation of their First
Amendment rights. The district court granted the Defendants’
Motion For Summary Judgment on the ground that the Plaintiffs did
not speak on a matter of public concern, and the Plaintiffs
appealed. Because we hold that the Plaintiffs engaged in protected
speech, the Defendants are not entitled to qualified or absolute
immunity, and the Board of Trustees’ actions were pursuant to
official policy, we reverse and remand for further proceedings.
BACKGROUND
In the beginning of the 1995-96 school year, there was an
escalating conflict at VHS concerning the performance rating of the
school and its principal, Melissa Porche. At the same time, Harris
and Martin’s colleagues elected them faculty representatives of
VHS’s site based decision-making committee (“SBDM”). The SBDM is
part of a program created by the Texas Legislature to improve the
quality of public schools through increased input from multiple
1
The Board of Trustees Defendants are Paul Kornfuehrer, Clay
Cain, Ivan Green, Randy Pollard, Margaret Easley, Reuban Murray,
and Theresa Guitierrez.
2
sources.2 Each SBDM includes faculty representatives, parents,
community members and business representatives.
In the fall semester, Harris and Martin met with Brezina and
expressed the faculty’s concerns about Principal Porche and gave
Brezina a memorandum outlining them. As a result of this meeting,
Superintendent Brezina hired a consultant to work with the SBDM,
the faculty and Porche to improve the situation. After Brezina
received the consultant’s report, he formed a sub-committee of the
SBDM to create an improvement plan for VHS. Brezina appointed all
of the faculty members who were SBDM members, including Harris and
Martin, to serve on this newly formed Internal Component Committee
(“ICC”).
The ICC distributed its improvement plan in Mid-October, but
by the December 8, 1995 meeting of the ICC the situation at VHS had
not improved. Part of the December 8th meeting was set aside to
discuss the implementation of the improvement plan and its
progress. Harris reported that many of the faculty members felt
Porche was not following the plan, and that VHS needed a new
principal to improve the situation. Martin agreed and added if
Brezina did not do something, the faculty would revolt. Martin and
Harris also called individual VISD Trustees relaying the same
message.
After the December 8th meeting, Brezina reprimanded both
2
See Tex. Educ. Code Ann. § 11.253 (Vernon 1996).
3
Plaintiffs and transferred Harris to another high school to teach
the same subjects and Martin to a guidance center to teach new
subjects to middle school students. The VISD Board of Trustees
affirmed Brezina’s decision in a grievance hearing.
After the Board’s affirmance, the Plaintiffs sued, alleging
the transfers were in retaliation for their exercise of protected
speech. The district court granted the Defendants’ Motion For
Summary Judgment ruling that while the Plaintiffs’ transfer was an
adverse employment decision, they had not spoken on a matter of
public concern. The Plaintiffs appealed.
DISCUSSION
I. First Amendment Claim
The Plaintiffs contend their speech was on a matter of public
concern. The Defendants argue the Plaintiffs’ speech was not on a
matter of public concern, and alternatively, that the Plaintiffs
did not suffer an adverse employment decision.
This court reviews the district court’s determination de novo.
See La. Bricklayers & Trowel Trades Pension & Welfare Fund v.
Alfred Miller General Masonry Contracting Co., 157 F.3d 404, 407
(5th Cir. 1998); see also Willis v. Roche Biomedical Laboratories,
Inc., 61 F.3d 313, 315 (5th Cir. 1995). We must determine whether
the pleadings and other summary judgment evidence demonstrate there
is no genuine issue as to any material fact, and whether the
Defendants are entitled to judgment as a matter of law. Id. at
4
1371. The inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the party opposing the
motion. See Victor v. McElveen, 150 F.3d 451, 454 (5th Cir. 1998)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The government may not constitutionally compel persons to
relinquish their First Amendment rights as a condition of public
employment. E.g., Keyishian v. Board of Regents of the Univ. of
the State of N.Y., 385 U.S. 589 (1967). The Plaintiffs must
satisfy four elements to recover for a First Amendment retaliation
claim. First, the Plaintiffs must suffer an adverse employment
decision. See Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.
1997). Second, the Plaintiffs’ speech must involve a matter of
public concern. See Thompson v. City of Starkville, 901 F.2d 456,
460 (5th Cir. 1990) (citing Connick v. Meyers, 461 U.S. 138, 147
(1983)). Third, the Plaintiffs’ interest in commenting on matters
of public concern must outweigh the Defendants’ interest in
promoting efficiency. Id. (citing Pickering v. Board of Education,
391 U.S. 563, 568 (1968)). Fourth, the Plaintiffs’ speech must
have motivated the Defendants’ action. Id. (citing Mt. Healthy
City School Dist. v. Doyle, 429 U.S. 274, 287 (1977)). Because it
is undisputed that Plaintiffs’ transfers and reprimands were
motivated by the Plaintiffs’ speech at the December 8th meeting, we
address only the first three requirements specifically.3
3
Superintendent Brezina’s testimony that he transferred the
Plaintiffs because of their conduct at the December 8th meeting is
5
A. Did the Plaintiffs suffer an adverse employment action?
Superintendent Brezina, in mid-term, transferred Harris to
another high school to teach the same subjects and Martin to an
alternative learning center for disruptive students to teach
subjects and grade levels he had not taught before. Additionally,
Brezina reprimanded the Plaintiffs in their transfer letters, and
included the letters in the Plaintiffs’ personnel files.4
Subsequently, the Board of Trustees affirmed Brezina’s actions in
a grievance hearing.
The district court held that these facts constituted an
adverse employment decision, and we agree. We recognize that
federal courts should be extremely hesitant “to invade and take
over” in the area of education; a federal court is not the
appropriate forum in which to seek redress over “faculty disputes
concerning teaching assignments, room assignments, administrative
duties, classroom equipment, teacher recognition, and a host of
other relatively trivial matters.” Dorsett v. Board of Trustees
for States Colleges & Universities, 940 F.2d 121, 123-24 (5th Cir.
undisputed.
4
Superintendent Brezina’s January 8, 1995 letters to Harris and
Martin stated:
[r]ecent events, statements and other conduct on your part
have led me to the conclusion that you are unable and/or
unwilling to maintain the commitment you made to these goals
and to the improvement process. It is apparent to me that
neither the team nor I will be able to bring about a
resolution that will satisfy you and remove or alleviate your
discontent.
6
1990)(citing Connick v. Myers, 461 U.S. 138, 138-39 (1983)).
However, we have repeatedly held that reprimands and demotions
constitute adverse employment decisions. See Benningfield v. City
of Houston, 157 F.3d 369, 377 (5th Cir. 1998)(noting that a formal
reprimand constitutes an adverse employment decision); Harrington,
118 F.3d at 365 (“Adverse employment actions are discharges,
demotions, refusals to hire, refusals to promote, and reprimands.”)
(citing Pierce v. Texas Dep’t of Crim. Justice Inst. Div., 37 F.3d
1146, 1149 (5th Cir. 1994)).
We also recognize that “a plaintiff’s subjective perception
that a demotion has occurred is not enough” to constitute an
adverse employment decision. Forsyth v. City of Dallas, 91 F.3d
769, 774 (5th Cir. 1996). However, the record reflects that the
Plaintiffs’ transfers, viewed objectively, constitute a demotion .5
Superintendent Brezina testified that he intended the transfers to
be disciplinary in nature, and that he merely reprimanded another
faculty member because her actions were not as serious as the
Plaintiffs.6 Additionally, both Brezina and Board of Trustees
5
We have also recognized that a transfer not involving a
reduction in pay may constitute an adverse employment decision.
See Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996);
Vojvodich v. Lopez, 48 F.3d 879 (5th Cir. 1995); Thompkins v.
Vickers, 26 F.3d 603, 610-611 (5th Cir. 1994); Click v. Copeland,
970 F.2d 106, 109 (5th Cir. 1992); Fyfe v. Curlee, 902 F.2d 401
(5th Cir. 1990).
6
Superintendent Brezina reprimanded Janice Plowman, another
faulty member on the ICC, because she attended a meeting of VHS
teachers at a mall concerning Principal Porche.
7
member Gutierrez testified that they could not recall a mid-term
involuntary transfer of a teacher at VHS, except in one instance
which resulted from a reduction in force order.7 Gutierrez further
testified that the transfers branded the Plaintiffs as
“troublemakers” and “not team players.” Taken together, we agree
with the district court that these reprimands and transfers
constitute adverse employment decisions.
B. Was the Plaintiffs’ speech on a matter of public concern?
“In order for speech by a public employee to enjoy
constitutional protection from retaliation by a public employer,
the speech must involve a matter of public concern.” Denton v.
Morgan, 136 F.3d 1038, 1042 (5th Cir. 1998) (citing Connick v.
Meyers, 461 U.S. 138, 147 (1983)). To rise to the level of public
concern, the Plaintiffs’ must speak primarily in their roles as
citizens rather than as employees addressing matters only of
personal concern. See id. (internal citations omitted). We look
to the content, form, and context of the speech, as revealed by the
whole record, in determining whether the Plaintiffs’ speech
addresses a matter of public concern. See Connick, 461 U.S. at
147-48; see also Benningfield, 157 F.3d at 375. Determining
whether speech meets this threshold is a fact specific analysis.
See Thompson, 901 F.2d at 461-62. Examining the Plaintiffs’ speech
7
This case does not involve a mere administrative change in
teaching assignments, but a mid-term transfer to an entirely
different school, and in Martin’s case, unfamiliar subjects and
grade levels.
8
in light of the above considerations, we hold that the Plaintiffs’
speech was on a matter of public concern.
Brezina testified that he transferred and reprimanded the
Plaintiffs as a result of their speech and actions at the December
8th ICC meeting. The Plaintiffs alleged at this meeting they told
Brezina that many of the faculty believed Principal Porche was not
following the improvement plan, that her replacement was necessary
to alleviate the problems, and that the faculty would revolt if
Brezina did not do something.8
The Plaintiffs emphasize that the context and form of their
speech indicate it was on a matter of public concern. They contend
that they spoke at the meeting as elected representatives of the
faculty, and that they simply communicated the views of the faculty
to the administration in compliance with their duties as committee
members. The Plaintiffs point out that the stated purpose of the
ICC’s meeting was to check the progress of implementing the
improvement plan. They argue that when they gave feedback as
requested, Brezina punished them because he did not like their
message.
The Defendants argue the Plaintiffs spoke only in their role
as employees, and that their speech was mere criticism of their
immediate supervisor’s administration of the school. The
8
Brezina testified in his deposition that the Plainitffs turned
their chairs facing away from the Principle Porche at this meeting
in an act of defiance and disrespect to both the Principal and
himself, but the Plaintiffs specifically denied these actions.
9
Defendants interpret our cases as holding that when a public
employee speaks in his role as an employee, his speech may only be
considered on a matter of public concern if it involves the report
of corruption or wrongdoing to higher authorities. They argue that
because the Plaintiffs’ speech does not fall within that limited
exception, their speech is not on a matter of public concern.
The Plaintiffs’ speech does not fit neatly within any of the
factual scenarios in which we have held speech involved a matter of
public concern. The Plaintiffs rely on cases where we have held
that an employee’s testimony before a fact-finding or adjudicatory
body is inherently a matter of public concern. See Johnston v.
Harris County Flood Control District, 869 F.2d 1565, 1577 (5th Cir.
1989); Reeves v. Claiborne County Bd. Of Educ., 828 F.2d 1096, 1100
(5th Cir. 1987).9 While the Plaintiffs were not faced with the
choice of perjuring themselves or losing their job, they were faced
with the choice of either telling the truth and fulfilling their
duty as committee members or keeping silent and frustrating their
purpose and function on the committee. See Victor v. McElveen, 150
F.3d 451, 458 (5th Cir. 1998)(“[W]hen an employee speaks in
response to an invitation and on a matter pertinent to that
request, the context factor weighs in his favor.”) By protecting
the Plaintiffs’ speech when the administration requested them, as
9
Accord Green v. Philadelphia Housing Authority, 105 F.3d 882,
886 (3rd Cir. 1997) (holding that employee’s voluntary testimony is
also inherently a matter of public concern).
10
committee members, to speak truthfully on the school’s progress, we
are protecting “the integrity of the truth seeking process.” See
Green, 105 F.3d 882,886 (3rd Cir. 1997).10
An employee’s speech may contain an element of personal
interest and yet still qualify as speech on a matter of public
concern. See Benningfield, 157 F.3d at 375; see also Thompson, 901
F.2d at 463-65. The Plaintiffs certainly had an interest in their
speech as employees, because they could not help but benefit as
teachers from the improvement of the educational environment at
VHS. However, they also had strong interests as committee members
in achieving the goals the committee set for itself and the school.
The Defendants did not point to any evidence of an underlying
personal dispute between the Plaintiffs and Principle Porche.
There is no evidence that the Plaintiffs’ speech merely concerned
an employment related squabble with their supervisor. In fact,
there is evidence to the contrary, establishing that both
Plaintiffs were constantly involved in attempts to raise the level
of education at VHS.
Another factor considered in determining whether speech is on
a matter of public concern is whether the comments were made
against a backdrop of widespread debate in the community. See
Tompkins, 26 F.3d 603, 607. Several board members testified that
10
The outcome of this fact specific determination might have been
different had the Plaintiffs not been committee members reporting
the views of the faculty at large to the administration.
11
faculty members and parents called board members with concerns
about VHS. Board of Trustees member Margaret Easley testified that
people even stopped her at the grocery store and church with
concerns about the situation at VHS. Additionally, the local
newspaper ran a story indicating the low performance rating VHS
received from the Texas Department of Education. In light of the
above considerations, we hold that the Plaintiffs did speak on a
matter of public concern and reverse the district court.
C. Pickering Balancing
We must next consider whether the Plaintiffs’ interest in free
speech outweighs “the interest of the state, as an employer, in
promoting the efficiency of the public services it performs through
its employees.” Victor, 150 F.3d at 457 (citing Pickering, 391
U.S. at 568.) In striking this balance we should examine whether
the speech was likely to generate controversy and disruption,
impeded the school’s general performance and operation, and
affected working relationships necessary to the department’s proper
functioning. See Brawner v. Richardson, 855 F.2d 187, 192 (5th
Cir. 1988)(citing Pickering, 391 U.S. at 569-73).
The Defendants argue that the Plaintiffs’ speech demonstrated
their lack of commitment to the improvement plan, therefore
jeopardizing the plan’s success. They assert Brezina was justified
in removing the Plaintiffs from VHS’s campus to allow the
improvement plan to effectively resolve the problems on campus.
12
The Defendants do not offer any evidence that the Plaintiffs’
speech disrupted the school’s operations or performance. In fact,
the improvement plan specifically designated that the content of
the ICC meetings was to be confidential. The events on the campus
after the Plaintiffs’ transfer indicate that Brezina’s conclusion
was incorrect. Ultimately, both Brezina and Principal Porche were
removed from VHS’s campus. The Plaintiffs’ speech and actions
throughout the turmoil at VHS indicate their intent to improve the
situation at the school rather than abandon the goals of the
committee and the improvement plan. For the above reasons, we
strike the balance in favor of the plaintiffs’ interest in free
speech.
II. Immunity
A. Qualified Immunity
The Defendants argue as an alternative that their qualified
immunity supports the district court’s grant of summary judgment,
even if Plaintiff’s speech is protected and they did suffer an
adverse employment decision. The district court did not reach the
issue.
Qualified immunity shields certain public officials performing
discretionary functions from civil damage liability if their
actions could reasonably have been thought consistent with the
rights they are alleged to have violated. Duckett v. City of Cedar
Park, 950 F.2d 272, 279 (5th Cir. 1992) (citing Anderson v.
13
Creighton, 483 U.S. 635, 638 (1987)). Whether a defendant is
entitled to qualified immunity is a two step inquiry. See Hayter
v. City of Mount Vernon, 154 F.3d 269, 274 (5th Cir. 1998). The
first question is whether the plaintiff alleged the violation of a
clearly established constitutional right. See Seigert v. Gilley,
500 U.S. 226, 232 (1991). The second question is whether the
defendant’s conduct was objectively reasonable in light of clearly
established constitutional law. See Hayter, 154 F.3d at 274.
“Even if a defendant’s conduct actually violates a plaintiff’s
constitutional right, the defendant is entitled to qualified
immunity if the conduct was objectively reasonable.” Duckett, 950
F.2d at 280.
The Defendants contend they are entitled to qualified immunity
because the law concerning the Plaintiffs’ type of speech was not
clearly established at the time of their conduct. They argue that
a right can rarely be considered clearly established when the law
requires the balancing of interests in determining whether the
Plaintiffs’ speech is constitutionally protected. See Medina v.
City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992);
Borucki v. Ryan, 827 F.2d 836, 848 (1st Cir. 1987). The Defendants
assert they should not be punished for making an incorrect judgment
call in this particular case. The Plaintiffs argue there does not
have to be a case directly on point for the law to be deemed
clearly established, and that existing employee speech law was
clearly established under these facts. See Anderson v. Creighton,
14
483 U.S. 635, 640 (1987) (“this is not to say that an official
action is protected by qualified immunity unless the very action in
question has previously been held unlawful.”); see also Hassan v.
Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1994).
The Defendants are not insulated from their unconstitutional
conduct merely because a balancing test is involved in our
analysis. While employee speech cases are a likely vehicle for
varied fact scenarios, the law is clearly established that a “mix
of public and private speech” may be constitutionally protected.
Benningfield, 157 F.3d at 375; Warnock v. Pecos County, Texas, 116
F.3d 776, 782 (5th Cir. 1997)(“a public employee can make a single
statement both as an employee and as a citizen.”)
B. Absolute Immunity
Board of Trustees Defendants Cain, Kornfuehrer, Pollard and
Green argue they are entitled to absolute immunity because their
actions in the Level III Grievance Hearing reviewing the
Plaintiffs’ transfer were quasi-judicial in nature. For the
following reasons, we hold that the Board Member Defendants are not
entitled to absolute immunity.
“It is generally understood that a judge, and those similarly
situated, have absolute immunity for judicial acts.” Mylett v.
Mullican, 992 F.2d 1347, 1352 (5th Cir. 1993). We examine the
character of a governmental officer’s duties and the relationship
to the parties when determining whether he is entitled to absolute
15
immunity. Id. (citing Stump v. Sparkman, 435 U.S. 349 (1978)).
“If the functions are of a judicial nature then we must weigh the
costs and benefits of denying or affording absolute immunity.”
O’Neal v. Mississippi State Board of Nursing, 113 F.3d 62, 65 (5th
Cir. 1997). The following six factors are characteristics of the
judicial process and are instructive in determining whether the
Defendants are entitled to absolute immunity: (1) the need to
assure that the individual can perform his functions without
harassment or intimidation; (2) the presence of safeguards that
reduce the need for private damages actions as a means of
controlling unconstitutional conduct; (3) insulation from political
influence; (4) the importance of precedent; (5) the adversarial
nature of the process; and (6) the correctability of error on
appeal. See id. (citing Cleavinger v. Saxner, 474 U.S. 193, 202
(1985)). “No one factor is controlling and the list of
considerations is not intended to be exclusive.” Mylett, 992 F.2d
at 1353.
The Defendants rely on Hernandez v. Hayes, 931 S.W.2d 648
(Tex.App.-San Antonio, 1996, writ denied), arguing that the Texas
school board grievance procedures are quasi-judicial, therefore
entitling the Board of Trustees Defendants to absolute immunity.
Hernandez dealt with the absolute privilege under Texas law granted
to a witness testifying in a quasi-judicial proceeding against
civil liability for defamation. While the court held that the
16
grievance procedures were quasi-judicial in nature, it analyzed the
procedure using different factors from the federal rule. See
Hernandez, 931 S.W.2d at 652.
The Plaintiff’s rely on the Supreme Court’s decision denying
absolute immunity to school board members in Wood v. Strickland,
420 U.S. 308, 320 (1975). The Court held that affording absolute
immunity to school board members was unwarranted “since it would
not sufficiently increase the ability of school officials to
exercise their discretion in a forthright manner to warrant the
absence of a remedy” for constitutional violations. Wood, 420 U.S.
at 320.
While Wood dealt with a school board’s discipline of a
student, at least one other circuit has extended this holding to
deny absolute immunity to school boards’ decisions concerning a
faculty member’s employment. See Stewart v. Baldwin County Board
of Education, 908 F.2d 1499, 1507-08 (11th Cir. 1990) (holding the
Court’s ruling precludes an extension of absolute immunity to board
members’ decision to terminate faculty member). Additionally, the
record indicates that the school board members were elected,
illustrating that they are not insulated from political forces as
are appointed governmental officials.11 While it is important that
the school board members are able to make decisions “free from the
threat of incurring personal liability for every decision they hand
11
The parties failed to apply the above factors or specify any of
the school board’s procedures in their briefs.
17
down”, O’Neal, 113 F.3d at 66, we believe that qualified immunity
affords them sufficient protection. For the above reasons, we hold
the Defendants are not entitled to qualified immunity.
III. VISD’s section 1983 liability
VISD alternatively contends the Plaintiffs failed to
demonstrate that constitutional violations occurred as a result of
school district policy or custom. The Plaintiffs argue VISD is
subject to § 1983 liability through Superintendent Brezina’s
actions because the Board of Trustees delegated their policymaking
authority in the area of employment policy to him. Alternatively,
they contend VISD is subject to liability through the Board of
Trustees’ actions as policymakers in affirming the Plaintiffs’
transfers in the grievance hearing.
“A municipality may be held liable under § 1983 when
‘execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury.’” Doe v. Dallas
Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998) (citing Monell
v. Dep’t of Soc. Services of New York, 436 U.S. 658, 691 (1978)).
On at least two separate occasions, we have held that the board of
trustees of an independent school district in Texas is a
policymaker for purposes of § 1983. See Doe, 153 F.3d at 216; Jett
v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).
The Board of Trustees’ action in affirming Superintendent Brezina’s
18
decision to transfer the Plaintiffs was an act that “may fairly be
said to represent official policy” because of the Board’s status as
a policymaker. Doe, 153 F.2d at 215. As a result, VISD’s argument
fails.
CONCLUSION
For the foregoing reasons, we reverse the district court’s
grant of summary judgment for the Defendants and remand to the
trial court for further proceedings.
REVERSED AND REMANDED
19
JERRY E. SMITH, Circuit Judge, dissenting:
Federal courts have “neither the competency nor the resources
to undertake to micro-manage the administration of thousands of
state educational institutions.” Dorsett v. Bd. of Trustees,
940 F.2d 121, 123-24 (5th Cir. 1991). Because the majority adopts
too expansive a definition of protected speech for public employ-
eesSSand thereby takes another step toward constitutionalizing the
management of public schoolsSSI respectfully dissent.
I.
I disagree with the majority’s characterization of the
plaintiffs’s speech “as a matter of public concern.” When
analyzing this question, a court should consider the “content, form
and context of a given statement, as revealed by the whole record.”
Connick v. Myers, 461 U.S. 138, 147-48 (1983). While determina-
tions of whether speech is a matter of public concern are necessar-
ily fact-specific, the majority nonetheless departs from this
circuit’s precedent. In particular, the majority fails properly to
analyze the content of the plaintiffs’ speech and, in doing so,
lowers the requirements for plaintiffs asserting similar causes of
action.
A.
This circuit has never before held that an employee’s
criticism of his immediate supervisor for mismanagement and job
performance constitutes a matter of public concern. In fact, we
consistently have refused to extend First Amendment protection to
a public employee speaking in his role as an employee unless the
speech “involves the report of corruption or serious wrongdoing.”12
The cited cases teach us that we should analyze the content of an
employee’s speech about his supervisor for discussion of “serious
wrongdoing.” This may include claims of sexual harassment or
racial discrimination, for example, but should be more than simply
criticisms of a supervisor’s job performance or management skills.
The plaintiffs seek protection for their speech at the
December 8, 1995, meeting related to questions of school management
and budgetary allocations. More specifically, almost all their
comments returned to the question of the ability of their direct
supervisor, Porche, to lead the faculty and administer the school.
These facts distinguish this case from Tompkins, the most
analogous fact situation cited by the plaintiffs. Here, the
plaintiffs were discussing the management of their own school,
whereas Tompkins had been criticizing the cancellation of a program
12
Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1050-51 (5th Cir. 1996)
(holding that speech about financial assistance and handling racial
discrimination does not qualify as protected speech); see also Kirkland v.
Northside Indep. Sch. Dist., 890 F.2d 794 (5th Cir. 1989) (reasoning that
teacher’s choice of curriculum does not qualify as “matter of public concern”);
cf. Wilson v. UT Health Ctr., 973 F.2d 1263, 1266 (finding speech alleging sexual
harassment a matter of public concern); Thompson v. Vickers, 26 F.3d 603, 606
(5th Cir. 1994) (finding speech alleging racial discrimination a matter of public
concern); Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir. 1998)
(finding speech alleging hostile work environment and tampering with criminal
histories a matter of public concern).
21
at another school. Thus, the instant plaintiffs have a much
greater personal stake in the consequences of their speech.
Additionally, Tompkins had alleged that the art program had
been canceled for reasons of racial discrimination on the part of
his superintendent; this obviously is a higher level of wrongdoing
than is alleged here. Moreover, while the plaintiffs' December 8
speech was not in relation to a threat of transfer or termination,
it nonetheless focused exclusively on their direct supervisor’s
role in the administration of the school and resembles an employ-
ment dispute more than does Tompkins’s general statement about
school policy. In sum, the district court correctly followed this
circuit’s precedent in holding that the content of the plaintiffs’
speech at the December 8 meeting does not rise to the level of
“serious wrongdoing” that this court has required.
B.
The majority also relies on the “backdrop of widespread debate
in the community.” But the district court found that there is
little support for the plaintiffs’ argument that their criticisms
of Porche had been made in the context of a larger public debate
over Porche’s management of the high school. For instance, the
court found that the single newspaper article offered by the
plaintiffs did not raise any of the plaintiffs’ concerns about the
management of the school or of its principal. It found no other
evidence of widespread public debate other than inconclusive
22
private communications between individual faculty members and the
board of trustees. Therefore, the court properly refused to find
that the plaintiffs’ comments were made “in the context of a
continuing commentary that had originated in [a] public forum.”
Tompkins, 26 F.3d at 607 (quoting Brawner v. City of Richardson,
855 F.2d 187, 192 (5th Cir. 1988)).
II.
I agree with the district court that when reviewed together,
the content, form, and context of the plaintiffs’ speech do not
sufficiently involve a matter of public concern to the degree
required to receive First Amendment protection. The form of the
speech does not by itself establish that it involved a matter of
public concern.13 Moreover, the plaintiffs have offered little
evidence to support their argument that there was widespread public
debate on the matter. Most importantly, however, the content of
the speech seems narrowly focused on the performance and conduct of
their direct supervisor. Without alleging seriously wrong or
corrupt conduct, the plaintiffs have little basis for claiming
First Amendment protection.
The Supreme Court created the “public concern” requirement to
13
While I do not disagree with the majority’s conclusion that the form of the
plaintiffs’ speech weighs in their favor, the fact that they were invited to
speak does not necessarily create a“matter of public concern.” The other two
factorsSSespecially the content of the speechSSare key to determining that the
speech was not a matter of public concern.
23
prevent “intrusive oversight by the judiciary in the name of the
First Amendment.” See Connick, 461 U.S. at 147-48. Previously,
this court has followed these instructions by limiting the notion
of public concern to cases of serious wrongdoing, so as to dissuade
litigants from using federal courts to settle employment and
management disputes. The majority departs from this approach and
unwisely expands the notion of public concern to include disputes
between employees and their supervisors. Accordingly, I respect-
fully dissent.
24