Gikas v. Washington School District

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-16-2003
Gikas v. Washington Sch Dist
Precedential or Non-Precedential: Precedential
Docket 02-1934
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PRECEDENTIAL
Filed May 16, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1934
JAMES GIKAS,
Appellant
v.
WASHINGTON SCHOOL DISTRICT,
WASHINGTON BOARD OF SCHOOL DIRECTORS,
DR. MARYANN B. WEINSTEIN, DONALD G. EMERY,
DR. JAMES S. BALENT, ALAN B. COTTRILL,
JANE S. FERGUS, DAVID R. JOHNSTON,
JONATHAN W. MILES, PHYLLIS L. WALLER, and
ED WESTCOTT, individually
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 00-cv-00890)
Judge: Honorable Robert J. Cindrich
Argued: February 25, 2003
Before: BECKER, Chief Judge,* Scirica, Circuit Judge,**
and Shadur,*** District Judge
* Judge Becker completed his term as Chief Judge on May 4, 2003.
** Judge Scirica succeeded to the position of Chief Judge on May 4,
2003.
*** Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.
2
(Filed: May 16, 2003)
DANIEL W. ERNSBERGER
(ARGUED)
Behrend & Ernsberger
306 Fourth Avenue
Suite 300
Pittsburgh, PA 15222
Counsel for Appellant
DOUGLAS R. NOLIN (ARGUED)
Peacock Keller Ecker & Crothers,
LLP
70 East Beau Street
Washington, PA 15301
Counsel for Appellees
OPINION OF THE COURT
BECKER, Circuit Judge:
This appeal concerns the property rights created by the
Pennsylvania Veterans’ Preference Act (“VPA”), 51 Pa. C.S.A.
§ 7104. Section 7104(a) of the VPA provides that a veteran
possessing the “requisite qualifications” shall be given a
preference in the assignment of public jobs. After working
as a substitute teacher in the Washington School District,
plaintiff James Gikas, who had received an honorable
discharge from both the Army and the Navy, sought full-
time employment in the District as a social studies teacher.
On two occasions, non-veterans were hired into the
District’s social studies department instead of Gikas, who
would have qualified for a preference over the non-veteran
applicants if it were shown that he possessed the “requisite
qualifications.” Gikas asserts that the District violated his
substantive due process rights by denying him the
preference and by not hiring him when a position became
available in the social studies department in 1999.
Gikas also claims that his procedural due process rights
were violated because the District failed to define the
3
“requisite qualifications” for the positions and to publish
those requirements so that applicant veterans would know
what was required in advance of applying for the positions.
By not defining in advance the “requisite qualifications,”
Gikas maintains, the District had free rein to ignore the
veterans’ preference. In his submission, the District could
define “requisite qualifications” post hoc as those of the
most qualified applicant so that a veteran would be
employed only if he was the most qualified, essentially
eviscerating any preference. Gikas argues that § 7104(a)
was meant to be a counterpart to § 7104(b) of the VPA,
which creates a preference in the assignment of public jobs
when a civil service exam is administered; if an applicant
veteran passes the civil service exam, he is entitled to the
position even if “his name does not stand highest on the
eligible or promotional list.” 51 Pa. C.S.A. § 7104(b). Thus,
Gikas argues that the District must provide in advance of
the hiring process an objective definition of “requisite
qualifications” to ensure that applicant veterans are
actually given the preference to which they are entitled
under the Act.
The District Court dismissed the procedural due process
claim because Gikas had “fail[ed] to state a claim upon
which relief can be granted,” and granted the defendants’
motion for summary judgment on the substantive due
process claim because “there [was] no genuine issue as to
any material fact and” the defendants were “entitled to a
judgment as a matter of law.” Fed. R.Civ. P. 12(b)(6); Fed
R.Civ. P. 56(c). We too conclude that Gikas has alleged
neither a substantive nor a procedural due process
violation. While the veterans’ preference contained in
§ 7104(a) is a property interest subject to procedural due
process protection, “not all property interests worthy of
procedural due process protection are protected by the
concept of substantive due process.” Reich v. Beharry, 883
F.2d 239, 244 (3d Cir. 1989). Rather, a property interest
must be “fundamental” under the United States
Constitution to be subject to substantive due process
protection. In our view, the preference contained in
§ 7104(a) is not sufficiently “fundamental” to qualify as a
property interest deserving substantive due process
protection.
4
Moreover, we conclude that procedural due process does
not require the District to publish the definition of
“requisite qualifications” for a position in advance of the
hiring process. The property interest at issue here is not in
the teaching position itself, but in the preference. As such,
the District is not required to help applicant veterans
become qualified for the job; rather it is required to give
those applicants a preference only if they are independently
qualified. Requiring the publication in advance of the
“requisite qualifications” for a position is simply too
attenuated from the specific protected property interest in
the preference to be required by procedural due process. In
sum, Gikas has not established a federal constitutional
violation, hence we are constrained to affirm the judgment
of the District Court.
I.
In 1997, James Gikas, a veteran of both the Army and
the Navy who is certified to teach school in Pennsylvania,
applied for a teaching position in the Washington School
District and was hired as a part-time substitute teacher. In
June 1998, a full-time teaching position became available
in the social studies department and the District hired Cyril
Walther, a non-veteran substitute teacher who had served
an entire year in the position to be filled, teaching the same
material required for the position. When Gikas asked why
he was passed over for the position, he was told that he did
not have enough experience as a full-time substitute
teacher. Gikas objected because he had not been informed
that working full time (as opposed to part time) as a
substitute teacher would affect his ability to be hired as a
full-time teacher. The school board represented that it
would inform Gikas of future openings in his area of
certification and would delineate the minimum
qualifications for such openings.
In the summer of 1999, another full-time teaching
position became available in the District’s social studies
department. William Watson, the District’s high school
principal, and Ronald Junko, the District’s assistant high
school principal, chose eight candidates, including Gikas,
to interview for the position based on the following criteria:
5
(1) the appearance of the application; (2) extracurricular
activities; (3) grade point average; and (4) proximity of his
or her residence. During the interview, Watson and Junko
evaluated the applicants based on four general criteria;
those criteria were further divided into subsets. The criteria
were:
(1) Instruction
(A) Teaching Techniques/ Learning
(B) Planning
(C) Managing Students
(D) Motivating Students
(2) Professional Development and Fit with Needs
(A) Preparation
(B) Experience
(C) Professional Growth/ Responsibility
(D) Philosophy/ Goals
(E) Coaching/ Sponsoring
(3) Relationships
(A) Staff
(B) Parents/ Community
(4) Other
(A) Standard District Measure.
The applicants were given a score in each area based on
their answers to a standardized series of questions.
Based on this score, Gikas ranked sixth out of the eight
candidates, and he was not offered the teaching position.
Watson testified that Gikas provided only generic responses
to questions related to teaching techniques, planning,
managing and motivating students, and that he did not
demonstrate an understanding of the District’s
demographics or philosophies. A non-veteran, Mark
Albertina, who scored the highest in the interview
evaluation, was hired.
6
Gikas brought suit, pursuant to 42 U.S.C. § 1983, in the
District Court for the Western District of Pennsylvania
against the Washington School District, the Washington
Board of School Directors and nine members of the
Washington School Board individually, seeking
appointment to a teaching position with the District, with
back pay and benefits, based on alleged substantive and
procedural due process violations.1 Pursuant to the
Magistrates Act, 28 U.S.C. § 636(b)(1), and the Local Rules
for Magistrates, this case was heard before Magistrate
Judge Francis X. Caiazza. The Magistrate Judge issued a
Report and Recommendation proposing the dismissal of the
procedural due process claim, pursuant to Fed. R.Civ. P.
12(b)(6), which the District Court adopted. The Magistrate
Judge later filed a Report and Recommendation suggesting
that the District Court grant the defendants’ motion for
summary judgment on the substantive due process claim.
The District Court issued an order adopting the
recommendations of the Magistrate Judge. Gikas timely
appealed.
The District Court had jurisdiction pursuant to 28 U.S.C.
§ 1331 and we have appellate jurisdiction pursuant to 28
U.S.C. § 1291. We exercise plenary review over both the
order dismissing the procedural due process claim and the
order granting the defendants’ motion for summary
judgment. See United States v. Occidental Chemical Corp.,
200 F.3d 143, 147 (3d Cir. 1999) (“We exercise plenary
review of a grant of a motion to dismiss, accepting all
allegations in the Complaint as true and drawing all
reasonable inferences in the light most favorable to the
plaintiff.”); Pacitti v. Macy’s, 193 F.3d 766, 772 (3d Cir.
1999) (“We exercise plenary review over a grant of summary
judgment and apply the same legal standard used by the
District Court.”).
1. Gikas brought suit against the following individuals: Dr. Maryann B.
Weinstein, Donald G. Emery, Dr. James S. Balent, Alan B. Cottril, Jane
S. Fergus, David R. Johnson, Jonathan W. Miles, Phillis L. Walker, and
Ed Wescott.
7
II.
Gikas argues that the District deprived him of a property
interest protected by substantive due process when it hired
Albertina, a non-veteran, to fill the full-time teaching
position in the social studies department. In particular,
Gikas maintains that because he was one of eight
individuals selected to be interviewed for the position, he
met the “requisite qualifications” for the job, and as a
result, he was entitled to a preference under § 7104(a) of
the Pennsylvania Veterans’ Preference Act.2 Section 7104 of
the VPA provides:
(a) Non-civil service. Whenever any soldier possesses
the requisite qualifications and is eligible to
appointment to or promotion in a public position,
where no such civil service examination is required, the
appointing power in making an appointment or
promotion to a public position shall give preference to
such soldier.
(b) Name on civil service list. Whenever any soldier
possesses the requisite qualifications, and his name
appears on any eligible or promotional list, certified or
furnished as the result of any such civil service
examination, the appointing or promoting power in
2. Gikas also maintains that he was denied the preference simply
because he did not supply the District with a Form DD214 documenting
his veteran status. He bases this on a 1999 letter from the District’s
solicitor which states that “in reviewing [Gikas’] file, I note that the
School District has not been provided, by Mr. Gikas, with a DD214 form
. . . . Public school districts in Pennsylvania are not required to view an
individual as a “soldier” for purposes of the Veterans’ Preference Act
unless and until that individual provides the School District with a
DD214. . . . Consequently, we ask that you provide to us copies of the
DD214s issued to Mr. Gikas.” This is not sufficient to show that Gikas
was denied the preference because he did not provide this form. It
simply demonstrates that before litigating the issue, the District wanted
to make sure that Gikas was actually a veteran, as defined by the VPA.
Rather, it appears that Gikas was not hired because the District
concluded, from his responses during the interview process, that he did
not possess the “requisite qualifications” for the position, and that as
such, he was not entitled to the preference even if he had supplied the
District with the Form DD214.
8
making an appointment or promotion to a public
position shall give preference to such soldier,
notwithstanding, that his name does not stand highest
on the eligible or promotional list. 51 Pa. C.S.A. § 7104
(emphasis added).3
Pursuant to our caselaw, “ ‘a plaintiff must establish as
a threshold matter that he has a protected property interest
to which the Fourteenth Amendment’s due process
protection applies.’ ” Nicholas, M.D. v. Pa. State Univ., 227
F.3d 133, 139-40 (3d Cir. 2000) (quoting Woodwind
Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.
2000)). Gikas maintains that the veterans’ preference in
§ 7104(a) is a property right which entitles him to
substantive due process protection. This contention is
based primarily on our decision in Carter v. City of
Philadelphia, 989 F.2d 117, 122 (3d Cir. 1993), in which we
stated that “§ 7104(b) of the Veterans’ Preference Act
confers a constitutionally protected property right upon [the
plaintiff].” Gikas argues that § 7104(a) of the VPA creates
essentially the same property interest as § 7104(b),
establishing the same preference where there is no civil
service exam, and that we must therefore conclude that
§ 7104(a) creates a property interest protected by
substantive due process.
Gikas misunderstands the import of Carter. Although
Carter holds that § 7104(b) creates a property interest
which cannot be deprived without due process of law, the
Carter opinion refers specifically to procedural due process
protection and not substantive due process protection.
Although this is not explicitly stated in the opinion, it is
self-evident because the Carter panel cited to Boards of
Regents v. Roth, 408 U.S. 564 (1972), for the proposition
that a state-created property interest deserves
constitutional protection if the plaintiff has a legitimate
claim of entitlement, and not simply an expectation of the
benefit. 989 F.2d at 120. Roth and this line of analysis refer
specifically to the creation of a property interest subject to
3. The Pennsylvania Supreme Court has found the VPA unconstitutional
as to promotions. See Hoffman v. Township of Whitehall, 677 A.2d 1200,
1203 (Pa. 1996).
9
procedural due process protection, see discussion infra.
The Carter panel went on to conclude that the veterans’
preference in § 7104(b) created such an entitlement. Id. at
122.
In Nicholas, M.D. v. Pennsylvania State University, supra,we explained that a property interest protected by
procedural due process is not necessarily protected by
substantive due process:
On past occasion, we have lamented that “the case law
of this circuit and the Supreme Court provides very
little guidance as to what constitutes this ‘certain
quality’ of property interest worthy of protection under
the substantive due process clause.” Nevertheless, we
believe that a careful review of the case law does reveal
one guiding principle: whether a certain property
interest embodies this “particular quality” is not
determined by reference to state law, but rather
depends on whether that interest is “fundamental”
under the United States Constitution. . . . [T]his Circuit
has adopted an approach to substantive due process
that focuses on the nature of the property interest at
stake. By way of illustration, we have so far limited
non-legislative substantive due process review to cases
involving real property ownership . . . we have been
reluctant to extend substantive due process protection
to other, less fundamental property interests. 227 F.3d
at 140-141 (emphasis added) (internal citations
omitted).
The Nicholas panel also cited favorably Justice Powell’s
concurrence in Regents of University of Michigan v. Ewing,
474 U.S. 214 (1985), in which the majority assumed the
existence of a substantive due process property interest in
the university’s decision to dismiss the plaintiff from a
program of study, although it eventually concluded that the
there was no violation since the decision to dismiss the
plaintiff was not arbitrary or capricious. Justice Powell
noted:
Although I join in the Court’s opinion holding that
respondent presents no violation of the substantive due
process right that he asserts, I think it unnecessary to
10
assume the existence of such a right on the facts of
this case. . . . Even if one assumes the existence of a
property right . . . not every such right is entitled to the
protection of substantive due process. While property
interests are protected by procedural due process even
though the interest is derived from state law rather
than the Constitution, substantive due process rights
are created only by the Constitution. . . . The interest
asserted by respondent [in continued university
enrollment] is essentially a state-law contract right. It
bears little resemblance to the fundamental interests
that previously have been viewed as implicitly protected
by the Constitution. Ewing, 474 U.S. at 228-230(Powell, J. concurring) (internal citations omitted).
Using this analysis, the Nicholas panel held that a
university professor’s tenured public employment was not a
fundamental property interest entitled to substantive due
process protection. See Nicholas, 227 F.3d at 143 (“[The
plaintiff’s] tenured public employment is a wholly state-
created contract right . . . . [W]e view public employment as
more closely analogous to those state-created property
interests that this Court has previously deemed unworthy
of substantive due process than to the venerable common-
law rights of real property ownership. . . . [T]he federal
judiciary should not become a general court of review for
state employment decisions.”) (internal citations omitted).
The property interest at issue in this case, which Gikas
alleges entitles him to substantive due process protection,
is not even a state-created employment interest. Rather, the
property interest here is in an employment preference, not
in the employment itself. At all events, the property interest
in the preference appears to be no more fundamental under
the federal Constitution than the employment interest in
Nicholas. The interest in the preference is solely based upon
state law. Thus, having no reason to believe that Gikas’
interest in the veterans’ preference is a fundamental right
created by the federal Constitution, we conclude that
§ 7104(a) of the VPA does not create a property interest
protected by substantive due process. Failing to meet this
threshold requirement, we do not need to determine
whether Gikas was deprived of his right to the preference
when he was not hired for the teaching position.
11
III.
Gikas argues that he was deprived of procedural due
process when the District failed to notify him of the
meaning of “requisite qualifications” so that he could make
himself a better applicant for the teaching positions that
became available in 1998 and 1999. Gikas also maintains
that applicant veterans have no way of knowing whether
they are entitled to the veterans’ preference if the District is
not required to publish the “requisite qualifications” for the
position in advance of hiring. The practical result of not
publishing the “requisite qualifications” in advance of
hiring, the argument continues, is to eliminate the veterans’
preference under § 7104(a): if the District does not have to
set forth the meaning of “requisite qualifications,” it can
simply hire the most qualified applicant and later assert
that the applicant veterans were not qualified to perform
the job.
Gikas relies on Justice Zappala’s concurrence in
Brickhouse v. Spring-Ford Area School District, stating that
for the veterans’ preference under § 7104(a) “to be
meaningful . . . it is necessary that [the] criteria be clearly
spelled out in advance of the selection process, and not
merely be subjective conclusions, formed ad hoc during or
after the selection process, based on the relative credentials
of the actual applicants.” 656 A.2d 483, 488 (Pa. 1995)
(Zappala, J., concurring). Under § 7104(b) of the VPA, any
veteran who passes the civil service exam is entitled to the
hiring preference even if “his name does not stand highest
on the eligible . . . list.” 51 Pa. C.S.A. § 7104(b). Gikas
asserts that if the § 7104(a) preference is not construed
similarly to ensure that the veteran does not have to be the
most qualified applicant to be entitled to the job (rather the
veteran must only be qualified to perform the job), the
preference is rendered illusory.
In order to determine whether the District deprived Gikas
of a property interest without following the procedures
required by due process, we engage in a familiar “two-
stage” analysis. We first determine whether Gikas has
alleged a property interest protected by procedural due
process. “[W]e then must decide what procedures constitute
‘due process of law.’ ” Robb v. City of Phila., 733 F.2d 286,
12
292 (3d Cir. 1984) (citing Roth, 408 U.S. at 569-72, and
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). In Carter,
we concluded that § 7104(b) of the VPA created an
entitlement that was protected by procedural due process
because “[t]he plain meaning of the statute, in unequivocal
terms, grants a preference to veterans in promotion. . . .
Because the clear language of § 7104(b) is controlling, we
need not review its legislative history or caselaw on this
issue.” 989 F.2d at 122.
The District seeks to differentiate § 7104(a) from our
holding concerning § 7104(b) in Carter, arguing that
because the definition of “requisite qualifications” is
subjective under § 7104(a), the preference therein is no
more than an expectation of a benefit, and not a legitimate
entitlement like the preference in § 7104(b).4 We are
unpersuaded by this reasoning, since like § 7104(b),
§ 7104(a) unequivocally states that if a soldier meets the
“requisite qualifications,” the public entity “shall give
preference to such soldier.” 51 Pa. C.S. § 7104(a). Although
it is more difficult to determine whether an applicant
veteran qualifies for the preference under § 7104(a), that
veteran, if qualified, is no less entitled to the preference in
§ 7104(a) than he would be to the preference in § 7104(b).
Thus, because we conclude that § 7104(a) creates a
legitimate entitlement to the preference, we hold that
§ 7104(a) creates a property interest for the purposes of
procedural due process.
But even though § 7104(a) creates a property interest for
procedural due process purposes, we must now determine
what process is due. Due process requires that a
deprivation of a property interest “be preceded by notice
and opportunity for hearing appropriate to the nature of the
case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
4. As noted above, the state can create a property interest that will be
protected by procedural due process, so long as the plaintiff has a
legitimate claim of entitlement to the benefit, and not a mere
expectation. See Robb, 733 F.2d at 292 (“Property interests are not
generally created by the Constitution. ‘Rather, they are created and their
dimensions are defined by existing rules or understandings that stem
from an independent source such as state law.’ ”) (quoting Roth, 408 U.S.
at 577).
13
542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S 306, 313 (1950)); see also Witkowski v. Welch,
173 F.3d 192, 205 (3d Cir. 1999) (holding that the
procedures required by due process are defined by federal
law). In the employment context, notice and an opportunity
to be heard generally refer to having “some kind of a
hearing” before being discharged.5 Loudermill, 470 U.S. at
542; see also Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000). In the case at bar, Gikas argues that due process
requires that he be given notice of the “requisite
qualifications” before he can be deprived of the preference,
but he has not cited to any case holding that due process
requires that applicants be notified of hiring criteria. We
will nonetheless consider whether Gikas has been deprived
of a protected property interest without due process of law
by not being informed of the “requisite qualifications” for
the teaching positions in 1998 and 1999.
While we are sympathetic to Gikas’ situation, we
conclude that procedural due process does not require the
District to publish the “requisite qualifications” in advance
of hiring.6 Our primary concern is that the procedure that
5. Gikas is not arguing here that he was denied a hearing in connection
with the District’s decision to not hire him. Pennsylvania school districts
and their governing boards are “local agencies,” governed by and subject
to Pennsylvania local agency law and procedure. Monaghan v. Bd. of Sch.
Dirs., 618 A.2d 1239, 1241(Pa. Commw. Ct. 1992); 2 Pa. C.S.A. §§ 101,
105, 551-555, 751-754 (1995). Hiring decisions of a school board are
final decisions falling within the local agency law’s procedural
requirements and judicial review. Those decisions are appealable to the
Pennsylvania Courts of Common Pleas. 2 Pa. C.S.A. § 752 (1995). The
record indicates that Gikas did not appeal the District’s hiring decision
and he has not alleged that those procedures are inadequate. See Alvin
v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (“In order to state a claim
for failure to provide due process, a plaintiff must have taken advantage
of the processes that are available to him or her, unless those processes
are unavailable or patently inadequate.”).
6. We do note, however, that the criteria used by the District to
determine whether Gikas possessed the “requisite qualifications,” i.e.
teaching techniques, planning, motivating students, etc., appear to be
basic indicators of whether an applicant would be a good teacher; if so,
Gikas should have anticipated that the District would use these, or
similar, criteria.
14
Gikas desires (publication of the definition of “requisite
qualifications” in advance of hiring) does not track the
property interest of which he alleges he was deprived: the
hiring preference. We emphasize that Gikas does not have
a property interest in the teaching position itself, but in the
veterans’ preference, which comes into play only if he has
the “requisite qualifications” for the job. See Carter, 989
F.2d at 122 (“We caution here that [the plaintiff’s] interest
is not in the promotion per se but in being given a
preference when his promotion is considered.”) (emphasis
in original).
In sum, the property interest in the preference does not
require that an applicant veteran be informed of the
meaning of “requisite qualifications.” Gikas has a property
interest only after he has demonstrated that he has met the
“requisite qualifications”; the VPA does not create a
property interest in helping the veteran achieve those
requirements. In other words, the District is not required by
due process to give applicant veterans notice of the
“requisite requirements” in advance of hiring because the
veteran does not have a property interest at that time. The
purpose of § 7104(a) is not to place veterans in a better
position than other applicants simply because they are
veterans; to be entitled to the preference, the applicant
veteran must be independently qualified. See Brickhouse,
656 A.2d at 486 (“[V]eterans are not to be preferred in the
assignment of public jobs merely on the strength of being
veterans. They must be, in some sense, “qualified.”). The
procedure that Gikas advocates, requiring the District to
delineate the “requisite qualifications” of a position before
the hiring process begins, is simply too far removed from
the constitutionally protected property interest in the
preference, which is only a protected property interest once
the applicant veteran has met the “requisite qualifications.”7
7. Moreover, we note that allowing the District to draft the requirements
for a teaching position on a case-by-case basis also serves a legitimate
function, even though the result of that function may be to reduce the
impact of the veterans’ preference. The “requisite qualifications” to teach
at the level of skill demanded by the employer will vary greatly depending
on the subject area, class size, and grade level. As such, it would appear
to be quite burdensome to require a school district to set forth in
advance the “requisite qualifications” for each different teaching position
that becomes available.
15
The judgment of the District Court will be affirmed.8
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
8. The District also argued that five of the individuals named as
defendants by Gikas were not liable because they were not members of
the school board at the time the alleged violations took place. There is
no need to address this issue since we are affirming the District Court
on other grounds.