concluding that, where the plaintiff superintendent claimed that the school board suspended him based upon both his political affiliation and speech on a matter of public concern, consideration of the plaintiff's speech was unnecessary because the fact that party affiliation was an appropriate requirement for the superintendent position of itself demonstrated that the suspension did not violate the plaintiff's First Amendment rights
How later courts described this case
- concluding that, where the plaintiff superintendent claimed that the school board suspended him based upon both his political affiliation and speech on a matter of public concern, consideration of the plaintiff's speech was unnecessary because the fact that party affiliation was an appropriate requirement for the superintendent position of itself demonstrated that the suspension did not violate the plaintiff's First Amendment rights
- holding that when a superintendent who opposed the winning slate in .a school board election was terminated, “his. speech and association involved matters of great public concern — the performance of elected officials”
- holding that a school superintendent “occupied a confidential relationship” with the school board because he was the custodian of the school’s confidential records and advised the board on confidential matters
- finding no property interest in the position of superintendent where the plaintiff fails to point to any provision of the Texas Education Code or any other rule-making source bestowing a property interest in the non-economic benefit of the duties and responsibilities as superintendent
Written by the judges who cited it.
The opinion
PATRICK E. HIGGINBOTHAM, Circuit Judge,
with whom POLITZ, GARWOOD and W. EUGENE DAVIS, Circuit Judges,
join specially concurring:
I write separately because I reach the same conclusions as the plurality, but by a *998 different path, both parallel to the plurality’s approach and not foreclosed by it. 1 Trustees of the Salado School District could deliver on the mandate of their election only through Superintendent Kinsey. They were entitled to a superintendent who shared their management philosophy. This superintendent did not. To the contrary, Kinsey and the newly elected board held diametrically opposed views on their respective roles in management. Certainly, the board was not obligated to hire a superintendent who did not share their philosophy, and the first amendment does not require them to retain such a superintendent.
This trumping of state interest over first amendment interests is expressed in a judicial creature — a policymaker. Such a policymaker cannot secure job tenure under the first amendment by publicly espousing his antagonizing philosophy or by engaging in other political activity in its service. Doubtless, such activity will enjoy the protection of the first amendment for many purposes, but it will contain no job security. As we have explained:
There is a governmental interest in securing those unique relationships between certain high level executives and the elected officials at whose grace they serve. For this narrow band of relationships, refusing to grant First Amendment tenure would seem to take away little freedom not already lost in accepting the appointment itself, at least when the appointive job has the sweep of authority and discretion as to be central to the elected official’s duty. The holder of such a position can hardly have any reasonable expectation but that his policy choices must publicly fall within the protective license issued by his appointing officer. To say that loss of that job is the price for his public declaration chills little.
Gonzalez I, 712 F.2d at 148.
Of course, a public policy official may not be fired for first amendment protected activity unrelated to his mission unless that activity would frustrate performance of his tasks. This poses a different inquiry. If, for example, public policy officials were to speak out about public issues, we would proceed with the balancing inquiry of Con-nick. As we explained in Gonzalez:
If [the government interest in having loyal policymaking employees] is implicated the trial court should then weigh that interest against the asserted rights of free speech. That weighing is required because we do not decide that all speech by persons in such relationships is unprotected. Rather, the speech must be weighed against its impact upon the relationship and that relationship’s role in the elected official’s discharge of his duties.
Id. at 150.
When, however, a policymaker is fired because of views related to his mission, there is no further weighing, whether or not these views have been publicly espoused. In a practical sense, the balances have already been struck by the categorization of a worker as a policymaker. See Hall v. Ford, 856 F.2d 255 (D.C.Cir.1988); Soderstrum v. Town of Grand Isle, 925 F.2d 135 (5th Cir.1991). Categorization versus balancing is familiar to first amendment jurisprudence. Although they both require accommodating competing values, they differ in that the policymaker categorization strikes the balance across cases, whereas the Connick balancing is from case to case. Categorization also shifts the case by case decisional process to definition. It puts a premium on definition. The Supreme Court has softened the procruste-an bite by requiring the state to demonstrate not only that a worker was a “policymaker” or held a “confidential” position, but also whether conformity of view is job related. As Justice Stevens put it:
The ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
*999 Branti v. Finkel, 445 U.S. 507, 518 , 100 S.Ct. 1287, 1295 , 63 L.Ed.2d 574 (1979).
This case has none of the problems of defining at the margin nor of job relatedness. Kinsey’s vision of respective roles of board and trustees need not be swallowed by the board. They go to the heart of the job. Stated another way, it is plain that a common vision of their respective roles is “an appropriate requirement for the effective performance of the public office involved,” id. at 518 , 100 S.Ct. at 1295 . This, for me decides this case.
. I fully concur with the plurality’s treatment of the property issues.