Petition — Lowell School District No. 71 v. Kerr

Supreme wi wu _— “—_

FILED

'

| NOV 14 1977 |

\

Mii MARL RO .

ee UO, OR CLERK

In The :

Supreme Gourt of The United States

OCTOBER TERM, 1977

. @2-688

LOWELL SCHOOL DISTRICT NO. 71, Petitioner,

DOROTHY KERR, Respondent

PETITION POR A WAIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE NINTH CIRCUTT

LARRY ©. GILDBA

442 B. 12th Avenue

Eugene, Oregon 97401

C504) 442-1771

Attorney for Petitioner

}. P. GRAFF

442 E. lath Avenue

Eugene, Oregon 97401

OF Counsel

eins

a

ane

ALL

Al

A. Opinion and judgment of the court of appeals...

BI

Cl

CITATIONS

Cases. Page

Adkins ¥. ae Cy See Sone Sil Pld 690

(3th Cie, 1975) | |

¥. Senl $13 fad 1297 omy Cir. 1),

aff'd, 27 U.S. 1 (1976) | ee

Apton «. Wilson, 506 F 2d 83 w. C Cir, 1974) ae

Aurora Educ. Avsn. East v. Board of Education, 490 Fld

441 (7th Cit, 1974), cert, denied, 416 U.S. ONS (1974) 7

Narsece v Board of Trustees pny Soe oe

F. Supp. 675 tN Dh. wn 18) —

Bennett v. Gravelle, 424 F. Supp. 208 (D Md. 1971),

d, 451 Fld 1O1L (4th Cir, 1971), cert, on,

U. 8. 917 C1972) | i)

Bivens ¥. Ss Usheons Mend

Riven Sis Unknown Named geno the der 5,69 10

Blanton v State Univ of New Yor, 489 F24 377 Qd

Civ, 1974) ..

Nrowlt Town of Miken, $27 Fad 90 (2d Cit 1975). K

hl hy f Gaeate, 425 PF id 446 (DSC.

$5550545425 5445525545452 441 5422445415545 SILAS IAAI LSE AEG LLE 15555 EGRRTG

Burt v. lord of Trans of dell County Schoo

Distriet, 521 F.2d 1201 (4th Cir, 1975) a |

Cheramie v. Tucker, 493 F.2d $86 (Sth Cir.), cert cert.

denied, 419 U.S 868 (1974) au @

City of Kenosha ¥. Bruno, 412 U. 8. $07 (1974) .. a call 9

Crosley v. Davis, 426 F. Supp. 389 CED. Ps, 1977) ...6,9, 10

Dahl ». City of Palo Alto, 472 F. ow eB

Cal, 1974) sonsnaexsssausxEusnsesnenssSStEatz ad sUKSKUSMASSESSSAEEA05092839 6

Donoghue . Behler, 429 F. Supp. 408 (DNJ. 1977)... 6

Fine v. City of New York, $29 F.2d 70 (2d Cir, 1978). 9

ii

Gray v. Union Intermediate Education pete

520 F.2d 803 (9h Cir, 1975) |. a

Hanna v. Drobwiek, 514 Pld ms (6th Cir. 1976) ——

$23 Fed “ws Ch Ge 197 1975) ... routes tol 6

Hatehinsen o Lake Oswego School Distriot No. 7 519

Had 961 (1978), v vacated on other grounds, a9 U 8.

Jemison v. MeCurrie, 388 F. Supp, 990 (N. D. Ill 1975)...

Keckeisen v. Indep. School District 612, 909 F.2d 1062

(ith Cir, 1975), cert, demied, 424 U.S. 99 (1975)

Livingood v. Townsend, 422 F. Supp. 24 CD. Minn. 1976) 6

Mims v. Board of Education of C c oad

fal i Gb Oe 98)

“7

Monell v. N y

$42 F.2d 2 ad On 1976) series of Cy 7 York 2 v

Monroe v. Pape, 465 U. S. 167 (1961) —— 109

Moor v. Cownty of Alameda, 411 U.S. 69501974) 7, 8,9, 11

Mt. Healthy € era ae ¢ Ce»

Doyle, 429 U. §. 274 (1977) | 45,7, 1,12

Pansarella v. Boyle, 406 F. Supp. 787 (DAL 1975)... — 6

Patterson v. Chester, 189 FP. 1094 then all

Pa. 1975) ae sURETRIRRERSEREERRNORNNEN oie mm ©

SSASLAALAL AAA A LSA ASA ASAALLAALAAL SALA LALLA LILLIA 151i 1411 ii1iii

rt rea Ie ot

Perry v. Linke, 394 F. Supp. 324 (N. D. Ohio 1974) 6

Persanowshi ¥. Salvio, 469 PF. Supp. 224 CD. Conn. 1974). 6

Pitrone vy Mercadante. 0 F. Corp. ae D. Pa.

iv

Prostvollo v. Univ. of South Dakota, 907 F.2d 775 (leh

Cit, 1974), cert, demied, 421 U. $992 (1978) 8

Kedding ¥. Medica, 402 F. Supp. 1260 CW. D. Pa. 1975). 6

Neeves v. City of Jaghson, 942 F.2d 491 (5th Cie, 1976)... 6

Noane ¥. © pant School Diewiet, 511 Pld

033 (5th Cit, 1975) ... se =

v. Vance County —_ Showin 1

29 (4th Cie, 1974) 4 —

aate teahe tan 501 Fd M1 Ged Cie

1974), vacated on other grownds, 421 U8. 984(1975) 8

Smetanha v. Borough of Ambridge, 476 F. Supp. 1366

CW. D. Pa. 1974) .. m= 6

Stephen City of Plano 875. Supp. 95 (BD. Ton ‘

Vendrell v. School Distriet No. 260, 226 Or. 264, 460

P.2d 282 (1961) |. uu $2

Weathers v. West Yame Conny School Distries Rept

a7 FP. 552 (D. Calo. 1974) “fe om

grownds, $90 F.2d 1395 (10th Cit. 1976) 5

Williams v am 498 F. Supp. 155 ON. D. TM. 1975) os 6

Williford v, California, 452 F.2d 474 (Oh Cie, 1965). 8

Miscellanecnus:

tisationd Vieuatons, 09 Flore L- Rev, 9aa C1970) .9, 10

due Div againet’ Munict

Vols the Portsowh : Come

ra 2 See oe & oe

Doetrine, 4 Md. L. Nev, 124 (1976) | —

Note, Municipal L in Damages for Violations

Constitutional Rights — Pashionin Conse of yoy

Directly from the Constitution — v. Town of Mil

ton, 7 Comm. L. Mev. 992 (1978)... —

Hundt, Suing M

teenth P ween Roswg

Note, The

ev. | (1973)

v

under the Four-

Ne. uns . 770 (1975) ........

Court, 1972 Term, 87 Harv. L.

10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977.

No.

LOWELL SCHOOL DISTRICT NO. 71, Petitioner

vs.

DOROTHY KERR, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Lowell School District No. 71 petitions for a writ of cer-

tiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit, entered in this case on June

13, 1977.

OPINIONS BELOW

The opinions of the district court, printed in Appendix B

hereto, are unreported. The opinion of the court 7 aaah

printed in Appendix A hereto, is also unreported.

JURISDICTION

The judgment of the court of appeals was entered on June

13, 1977, infra, p. A-1. Petitioner filed a timely petition for

rehearing on June 27, 1977, which was denied on August

16, 1977. On September 13, 1977, the court of appeals stayed

its mandate as to petitioner provided that this petition for cer-

tiorari was filed on or before September 30, 1977. Its mandate

has not yet issued as to the petitioner.

' a of this court is invoked under 2g US.C.

1254 (1).

2

QUESTIONS PRESENTED

1. Is a school district exempt ‘rom liability under 42 U.S.C.

§1983 to a school teacher whose contract the district has d»

clined to renew allegedly in violation of the teacher's First

Amendment rights?

2. If so, does a claim for damages lie against a school dis-

trict directly under the Fourteenth Amendment for an alleged

violation of, the teacher's First Amendment rights?

3. If such a claim can be stated, is an school dis-

trict immune under the Eleventh Amendment from suit upon

the claim in federal court?

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are 42 U.S.C. §1983 and

its jurisdictional counterpart 28 U.S.C. §1343, 28 U.S.C. §1331

(a) and Or. Rev. Stat. §30.260, 30,265, 30.275, 30.300, 30.310

and §30.320. They are printed in Appendix C.

STATEMENT OF THE CASE

Respondent brought an action for damages against the peti-

tioner, the su ea te of the school Rotini mem

of its board of directors. She alleged that petitioner declined

to renew her teaching contract at the end of the 1971-1972

school year because she had been a member of a group of citi-

zens who had circulated a newsletter about the district among

local citizens and she had written a letter critical of the district

which appeared in the local newspaper. She claimed that the

dutrict’s decision violated her rights under the First, Ninth

and Fourtz. nth Amendments to the United States Constitution."

Her action against the petitioner was originally brought

under 42 U.S.C. £1983, with federal jurisdiction invoked aie

28 U.S.C. §1343. The district judge dismissed the action on

the grounds that the petitioner is not a person subject to suit

under §1983. Respondent did not challenge this ruling.

1 R ent did not assert her Ninth Amendment rights at

trial or on appeal. For that reason no further mention is

made of them.

3

Respondent then amended her claim, contending that it

arose directly under the First and Fourteenth Amendments,

with federal jurisdiction based on 28 U.S.C. §1331. The dis-

trict court again dismissed the action against petitioner on the

following grounds: (1) it is not a person within §1983; (2) it

is immune from suit in federal court under the Eleventh Amend-

ment, so the court lacks jurisdiction under §1331; and (3)

respondent's complaint failed to state a cause of action against

the petitioner “under 42 U.S.C. $1983, 28 U.S.C, §1343, or

28 U.S.C. §1331”. Appendix B, infra, p. B-2.

Respondent proceeded to trial against the remaining de-

fendants. The f sore judge directed a verdict in their fens.

On appeal, the court below held both the dismissal of the

claim against petitioner and the directed verdict in favor of

the remaining defendants were erroneous and reversed. The

court below subsequently denied the school district's petition

for review of its holding on the jurisdictional issue and the

availability of relief against a school district directly under the

Fourteenth Amendment.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH DE-

CISIONS OF OTHER FEDERAL COURTS AS TO

THE EXISTENCE OF A FEDERAL CAUSE OF

ACTION FOR DAMAGES AGAINST SCHOOL

DISTRICTS WHOSE AGENTS OR OFFICIALS,

ACTING UNDER COLOR OF STATE LAW, AL-

LEGEDLY DEPRIVE OTHERS OF THEIR CON-

STITUTIONAL RIGHTS.

Three questions were briefed extensively for the district

court and the court below: (1) Was there federal question juris-

diction over respondent's claim against the petitioner? (2) Did

respondent state a claim for which relief can be granted? (3) Is

petitioner immune from suit for damages in federal court under

the Eleventh Amendment? Respondent did not challenge

the district judge’s holding that her action may not be main-

tained against petitioner under 42 U.S.C. §1983. Therefore,

4

the parties concentrated on whether there was federal juris-

diction over respondent's action under 28 U.S.C. §1331 and,

if so, whether respondent had stated a claim for relief against

the school district directly under the Fourteenth Amendment.

The court held that petitioner is not “immune” from such

a claim, “with jurisdiction under Title 28, §1331, and in Title

42 U.S.C. §1983.” Appendix A, infra, p. A-4, The rationale

of the holding appears to be that petitioner does not enjoy

Eleventh Amendment immunity if a claim for damages can

be stated against it over which there is federal jurisdiction.

On the Eleventh Amendment issue, the court cited Hutchison

v. Lake Oswego School District No. 7, 519 F.2d 961 (1975),

vacated on other grounds, 429 U. S. 1033 (1977), and Mt.

Healthy City School District Board of Education v. Doyle, 429

U. S. 274 (1977). On the remaining issues, the court referred,

without discussion, to its opinion in Gray v. Union County In-

termediate Education District, 520 F.2d 803, 805 (9th Cir.

1975).

In Gray, plaintiff asserted federal jurisdiction under 28

U.S.C. §1343 and §1331. Jurisdiction exists under §1343 if

defendant is a person subject to suit under 42 U.S.C, §1983.

The court declined to rule on the question of whether an Ore-

n school district is such a person, finding federal jurisdiction

Based on §1331. Without further discussion, the court stated:

“The ‘person’ requirements of §1983 do not appl

to §1331, and hence political subdivisions can be |

(Cit. om.).”

Id., at 805. The court in Gray was apparently not asked to de-

cide whether the complaint stated a claim for which relief could

be granted against the school district. To the extent that the

o—~ quoted above purports to answer such a question it is

ictum.

In Mt. Healthy City School District Board of Education v.

Doyle, supra, 429 U. S. at 279, this court resolved the juris-

dictional question, holding that where a complaint alleges facts

satisfying the requirements of §1331 a federal court has juris-

diction over an action against a municipality or a school district

5

for an alleged deprivation of the plaintiff's constitutional rights

by its agents or officials acting under color of state law, unless

the claim appears to be immaterial and made just to obtain

jurisdiction. Section 1331] is, however, merely a jurisdictional

statute. It does not provide a substantive basis for relief.

A question left unanswered in Mt. Healthy but specifically

reserved by the court is whether relief for deprivation of con-

stitutional rights is available against a school district directly

under the Fourteenth Amendment by analogy to the holding

in Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U. S. 388 (1971). In Bivens a damages rem-

edy against federal officers was implied directly under the

Fourth Amendment for an unconstitutional search. The issue

presented here is whether Bivens justifies recognition of a dam-

ages remedy against a school district, for an alleged violation

First Amendment rights of a plaintiff, based directly on the

Fourteenth Amendment.

This court reserved the issue in Mt. Healthy because the

question was too important to decide on the basis of the record

before it. The parties had not briefed the issue in the courts

below, but raised it for the first time after certiorari had been

granted and all briefs submitted. Here, by contrast, the issue

was fully briefed by both parties in the district court and the

court of appeals.

No court of appeals has yet ruled on the precise issue in-

volved in Mt. Healthy, where the defendant against whom re-

lief was sought was a school district. A concurring opinion in

Singleton v. Vance County Board of Education, 501 F.2d 429

(4th Cir. 1974) (Winter, J., concurring and dissenting), would

have approved Bivens in a damage suit against a school board

by a non-renewed teacher. The Fifth Circuit approved a dam-

ages award against a school district for wrongful discharge, with-

out mention of Bivens, in Roane v. Callishurg Indep. School

District, 511 F.2d 633 (Sth Cir. 1975),

District courts that have ruled on the issue, where the de-

fendant was a school district or school board, have reached con-

flicting results. Compare Weathers v. West Yuma County

School District R-]-1, 387 F. Supp. 552 CD. Colo. 1974), aff'd

6

on other grounds, 530 F.2d 1335 (10th Cir. 1976), holding

that since a school district is not a person under 42 U.S.C.

$1983 or §1985 a teacher whose contract was not renewed

has no remedy against it for violation of his Fourteenth Amend-

ment rights, regardless of the grounds of federal jurisdiction,

with Panzarella v. Boyle, 406 F. Supp. 787, 791-793 CD.R.L.

1975), holding that the complaint of a student suspended by a

public school committee, a political subdivision of the state

under state statutes, stated a pm directly against the committee

under the Fourteenth Amendment on the grounds that a Bivens

action is not restricted to violations of the Fourth Amendment.

Lower federal court decisions have also split on the avail-

ability of a damages remedy against municipalities, local agencies

and political subdivisions of a state other than school districts.

Some have extended Bivens to claims brought against such de-

fendants under the Fourteenth Amendment,? while others have

refused to recognize this remedy out of concern for federalism?

or the exclusion of municipalities from §1983¢. Some courts

2. Reeves v. City of Jackson, 532 F.2d 491, 495 (Sth Cir. 1976);

Hanna v. Drobnick, 514 F.2d 393, 398 (6th Cir. 1976)

(dictum); Hostrop v. Board of Junior College District No.

515, 523 F.2d 569 (7th Cir. 1975); Donoghue v. Behler,

429 F. Supp. 403 (D.N.J. 1977); Redding v. Medica, 402

F.Supp. 1260 CW. D. Pa. 1975); Barszez v. Board of Trustees

of Community College, 400 F. Supp. 675, 676 (N.D. Ill.

(1975); Williams v. Brown, 398 E Supp. 155, 156 (N.D.

Ill. 1975); Patterson v. City of Chester, 389 F.Supp. 1093,

1095-1096 CE.D. Pa. 1975); Stephens v. City Plano,

375 F.Supp. 985, 986 (CE.D. Tex. 1974); Dahl v. City of

Palo Alto, 372 F.Supp. 647 (N.D. Cal. 1974).

3. Crosley v. Davis, 426 F.Supp. 389 CE.D. Pa. 1977); Jamison

v. McCurrie, 388 F.Supp. 990, 992 (N.D. Ill. 1975); Perz-

anowski v. Salvio, 369 F.Supp. 223, 230 (D. Conn. 1974).

4. Bunting v. City of Colombia, 423 F.Supp. 446 (D.S.C.

1975); Livingood v. Townsend, 422 F.Supp. 24 CD. Minn.

1976); Pitrone v. Mercadante, 420 F.Supp. 1384 CE.D. Pa.

1976); Perry v. Linke, 394 F.Supp. 323, 324-326 (N.D.

Ohio 1974); Smetanka v. Borough | Ambridge, 378 F.Supp.

?

have maly declined to decide the isue®, These conflicts

will not he resolved until the court addresses the isues reserved

in Mt. Healthy City School District Board of Edneation v. Doyle,

sepa

2. THE DECISION BELOW RAISES SIGNIFICANT

AND RECURRING PROBLEMS CONCERNING

THE ADMINISTRATION OF 42 U.S.C. §1983 AND

THE IMPOSITION OF LIABILITY UPON

SCHOOL DISTRICTS IN CIVIL RIGHTS CASES

DRECTLY UNDER THE CONSTITUTION,

a municipal corporation, Monroe v. MS US.

! y CSCI), or acount Moor v. © Alemeda, au.

S. 693 C1973). Lower courts have a Wie variety of

local government bodies to the list of exempt defendants

(Cont,

1466, LA7R CWLD. Pa. 1974) v Mertens, 444 FB.

Supp, 1955, 1458 CN.D. Cal. 1972),

5. Pine v. City of New York, 529 P.dd 70, 76 (ld Cir, 1975),

Brawl v. Town of Milton, 527 P.dd 740 (ld Cir, 1978) Con

bane): v Howard, 514 Pd 1257, 1259 nl Corb

Cir, 1975), aff'd, 427 U.S. C1976); Apton v. Wilson, 506

Fad 84, 86 CDC. Cir, 1974),

6. Sehool boards: Monell v. . of Soevial § of City

of New York, 582 Fld 259, 262-264 (2d Cir, 1976); Burt

v. Board of Trustees of jeld County Sehool District,

$2) Pad 1201, 1208 Cath Cir, 1975), Adkins v. Duval

( ‘ .

m» Fdd 7h

Atrore . Aww, Bast ».

Road of Edueation, 490 Pad 441, 4458 (7th Cir, 1974),

cert. denied, 416 U.S, 985 C1974), and Keokeivon v,

School Distrtet 1h 809 ne 1062, 1065 (Ath Cir, 1975),

=

“

-

hen hive

pe ns ya es hep

Seoten ” Moor v. Cou of supra, 411 U.S. at 709,

bay he ew de ence :

commision: Bennett v. Gravelle, 424 BF.

210-211 CD.Md. 1971), afd, 451 Fad 101) (4h Cir,

1971), cert, dismissed, 407 U.S. 917 (1972),

See Note, The Court, 1972 Teem, 87 Harv, L. Rev,

1, 258 (1974) states, “There seems little doubt that

the rasaning of Brune | of Kenosha v. Brune, 412 U.S.

$07 C1974) to municipalities but applies t.

all agencies of state and local government.”

ne na

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3

In 1975 the act governing tort actions against public bodies

was amended.* In particular the definitions were expanded

ard clarified A distinction was drawn within the class of pub

lic bealies between the state on one hand and local public barlies

on the other, and school districts were reclassified as loeal

lic bexties. Furthermore, tort liability was defined

include any violation of 42 USC i9K8 ben i188

in 1975 expressly waived sow dn 4 “torts

committed by school districts Cree how.

ever, that these armenciments lid — - " any claim

any local public bady which arose prior to Donamher 41,

( laine arising before that date were declared ou to all

restrictions that existed to the = ie Ye. Rev. Stat

§40.265(6) (1975) Toms, onde 335

the present case, han , Ay _ nen ate sued

a person's civil rights by analogy to 42 U.S.C. 51984 in

etal conte

The decision of the court below conflicts with

‘= statutes as oo ae abe > Constitution

gone Su ( urt { petitioner was

an arm of the state —— from liability for torts —

in the exercise of discretionary Funetions A duties, —s

ing of discharging teaching staff Certiorari shen pe

to tesolve this conflict

CONCLUSION

bor these reasons, a weit of certiorari should imue tw re

view the judgment and opinion of the Ninth Cirewit.

Respectfully subenitted,

LARRAY O. GILDEA

Attorney for Petitioner

}. P. GRAPP

Of Counsel

”

Nowe robe n iw77

0 Or. Lawes ch. 69, $12 C1975)

A-]

APPENDIX A

Opinion and Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH DISTRICT

DOROTHY KERR, ;

Plaintiff-Appellant, 5

v. ) No. CA 74-3170

LOWELL SCHOOL DISTRICT ; MEMORANDUM

NO. 71, et al, 5

Defendants-Appellees. 5

Appeal from the United States

District Court for the District of Oregon

Before: DUNIWAY and WALLACE, Circuit Judges

and WHELAN, *District Judge

Plaintiff-Appellant appea ls from a judgment that she take

nothing and Eeteten Ter action. She assigned two errors.

The first is the making of an order dismissing that action as

inst Defendant- dailies Lowell School ict No. 71

fter School District), The second is the ting of a

a verdict in favor of all the Defendants- Appellees and

against Plaintiff-Appellant at the close of the presentation of

e Plaintiff-Appellant’s case in a jury trial.

The individual Defendants-Appellees include the five mem-

bets of the School Board of School District as individuals and

as members of the Board, and the Superintendent of School

District in his individual and official capacities.

The relevant facts pertinent to this appeal follow. Plaintiff-

Appellant had been a teacher emp School District in

various teachi pacities for the prey samy commencing in 1965

until the end of the I the 1971-72 school year (except for one year

* Honorable Francis C. Whelan, United States District Judge,

Central District of California, sitting by designation.

A-2

in 1967-68 when she took a leave of absence to return to col-

lege to secure a Master’s Degree). Her teaching contract was

not renewed for the school year 1972-73. During the fall and

through the end of 1971, Plaintiff-Appellant, with others, cir-

culated a “fact sheet” and a questionnaire concerning the com-

parison of School District with five other school districts in cer-

tain categories. The fact sheet gave certain data and the ques-

tionnaire requested answers to questions. In December 1971

Plaintiff-Appellant wrote a letter to the Editor of a local news-

paper which was critical in general of the operation of School

District. On February 29, 1972, the principal of Plaintiff-Appel-

lant’s school supplied her with a written teacher evaluation on

which he had rated her satisfactory on all items relating to

“teaching performance”, but had rated her less favorably in

some items relating to “personal qualities” and “professional re-

lationship”. The choo principal wrote with respect to the

items rated less favorably, “This evaluation is based on the

multitude of activities this year; participation in the Lowell Tax-

payers circular, letter to Editor, and general attitude around

school.” A few days later the school principal met with De-

fendant-Appellee School Superintendent Harmon and the two

went over the teacher evaluations and thereupon they jointly

agreed to recommend nonrenewal of Plaintiff-Appellant’s con-

tract. On March 13, 1972, the School Board met and accepted

such recommendation. Plaintiff-Appellant received notification

of her nonrenewal on March 14, 1972. She thereupon re-

quested a hearing before the Board and a statement of the rea-

sons for her nonrenewal. The hearing was held on May 16,

1972; the day before the hearing Plaintiff-Appellant was given

a statement listing the reasons for nonrenewal. Such statement

stated as reasons for nonrenewal:

1. She has not followed adopted grievance procedures or

regular administrative channels in pursuing grievances or com-

plaints.

2. She has not been candid with her principal.

3. She maintains a hostile and disruptive attitude with the

administration which has made communication virtually im-

possible.

A-3

4. The administration has lost confidence in her as a pro-

fessional teacher because of the items identified in her eval-

uations.

At the hearing on May 16, 1972, the school principal testi-

fied that the distribution of the fact sheet and questionnaire

and the letter to the Editor and general attitude around school

were factors in the nonrenewal; the School Superintendent testi-

fied that the bases for nonrenewal were Plaintiff-Appellant’s

rticipation in the questionnaire matter and in the letter to the

Editor, The School Board members testified they took the posi-

tion that Plaintiff-Appellant should not be renewed based upon

the recommendation made by the School Superintendent and

school principal. After the hearing the School Board affirmed

its prior decision not to renew Plaintiff-Appellant’s teaching

contract.

After the dismissal of School District from the action and

after the order of the District Court directing a verdict in favor

of all of the individual Defendants-Appellees, this Court in other

cases made two rulings which are dispositive of this appeal.

Those two rulings compel the reversal on this appeal the

order dismissing the action as to the Defendant-Appellee School

District and the reversal of the order of the District Court t-

ing the directed verdict in favor of all of the individual De.

fendants-Appellees.

Our Court in Hutchison v. Lake Oswego School District

No. 7, 519 F.2d 9761 [sic] (1975) (vacated on other grounds)...

U. S. ...... (1977), held that a money judgment for a past wrong-

ful act could be imposed against an one School District

and that the Eleventh Amendment does not prohibit such money

judgment. Our Court in so holding pointed out that such a

judgment against an Oregon School District imposed no liabil-

ity on the ae of the State of Oregon to pay any part of such

judgment for the reason that an Oregon School District has the

power to sue and be sued and the power to tax and that the only

obligation of the State of on to an Oregon School District

is the obligation to pay to the district an amount based upon the

number of resident students and that such amount may not be

an offset to the school district's own tax levy. In the case now

A-4

before us we are concerned with an Oregon School District.

Plaintiff-Appellant asserts her claim for recovery against School

District under the Fourteenth Amendment for ‘ait of her

First Amendment rights, with jurisdicion under Title 28 U.S.C.

§1331, and in Title 42, U.S.C. §1983. School District is not

immune from such an action. Mt. Healthy City School District

Board of Education v, Doyle, .... U. S. ........ (No. 75-1278, Jan.

11, 1977), part III of the opinion, pp ........ SS (slip op., pp

5-6). Gray v. Union County Intermediate Education District,

520 F.2d 803, (9th Cir. 1975), Under the doctrines of Hutch-

ison and Gray, the trial judge erred in dismissing the action

against School District.

In Gray, supra, this Court at page 806 of the opinion stated,

“a decision to terminate employment of a teacher which is only

partially in retaliation for the exercise of a constitutional right

is unlawful” (citing authorities). In Mt. Healthy City School

District, supra, the Court stated the following test governing

the fact finding in such a case as this:

Initially, in this case, burden was properly placed

upon respondent (teacher) to show that his conduct was

constitutionally protected, and that this conduct was a

“substantial factor” — or, to put it in other words, that

it was a “motivating factor” in the Board’s decision not

to rehire him. Respondent having carried that burden,

however, the District Court should have gone on to de-

termine whether the Board had shown by a p der-

ance of the evidence that it would have reached the same

decision as to respondent's reemployment even in the ab-

sence of the protected conduct. (footnote omitted) (....U. S.

Rone ; slip op, at 12).

However, in this case the determination as to the reasons for

nonrenewal of a teacher’s contract and of the intent and motiva-

tion of the members of the School Board and other school of-

ficials involved must be determined by the trier of fact. In the

instant case, Plaintiff-Appellant produced evidence at trial

which if viewed in the most favorable light to her might reason-

ably support an inference that her nonrenewal was based at

least in part upon her exercise of free speech. Under the Mt.

A-5

Healthy test, this shifted to Defendants-Appellees the burden

ot showing that they would have reached the same decision as

vo Plaintiff-Appellant’s reemployment even in the absence of

the protected conduct.

While it is true that individual members of the School Board

and the Superintendent of Schools are protected by a qualified

“good faith” immunity, it is the existence of reasonable grounds

for their belief formed at the time and in light of all of the cir-

cumstances coupled with their good faith belief that would af-

ford them qualified immunity, provided, of course, that such

grounds and such good faith beliet existed. See Scheuer v.

Rhodes, 416 U. S. 232, 247-248 (1974). The trier of fact,

here the jury, must determine not only the existence or non-

existence of such grounds, but also the issue of good faith be-

lief. Further, in Wood v. Strickland, 420 U. S. 308 at 321

(1975), the Supreme Court stated with respect to a school board

member: “The official himself must be acting sincerely and

with a belief that he is doing right, but an act violating a stu-

dent's constitutional rights can be no more justified by ignor-

ance or disregard of settled, indisputable law . . . than by the

presence of actual malice”. The same rule would apply to the

constitutional rights of a teacher, It was therefore error for t

trial judge to direct a verdict in favor of the individual School

Board members and Superintendent of Schools.

The judgment is reversed and the case is remanded for fur-

ther proceedings consistent with this opinion.

A6

UNITED STATES COURT OF APPEALS

FOR THE NINTH DISTRICT

DOROTHY KERR

Plaintiff-Appellant, )

he ) Case No. 74-3170

)» D.C, CV-72-1017

RAY CAMPBELL, ROBERT C. )

MOTSINGER, LARRY WALSCH, )

Defendants-Appellees. )

Appeal from the United States District Court for the Dis-

trict of Oregon.

This case came on to be heard on the Transcript of the

Record from the United States District Court for the District

of Oregon and was duly submitted.

On consideration whereof, it is now here ordered and ad-

ju by this Court, that the judgment of the said District

Court in this Cause be, and hereby is reversed and remanded.

Costs in this court in favor of the Appellant, and against the

Appellees.

40 Briefs $190.40

Filed and entered June 13, 1977.

B-1

APPENDIX B

1. Opinion and order granting petitioner's motion to dismiss.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DOROTHY KERR, )

Plaintiff, )

) Civil No. 72-1017

ee ) OPINION

LOWELL SCHOOL DISTRICT )

71, et al., )

Defendants. )

SKOPIL, Judge:

Plaintiff seeks damages for deprivation of rights guaranteed

her by the United States Constitution. Plaintiff i sate a

permanent injunction against all defendants, and those acting

in concert with them or under their direction, enjoining them

from interfering with plaintiff's rights, and the rights of others

similarly situated, of freedom of speech and association. Plain-

tiff also seeks attorneys fees.

Jurisdiction is asserted under 42 U.S.C. §1983, 28 U.S.C.

§1343, and the First, Ninth, and Fourteenth Amendments to

the United States Constitution.

The mater is now before he Court on the following motions

of defendants:

1) To dismiss defendant Lowell School District 71 for lack

of subject matter jurisdiction.

2) To dismiss defendants Harmon, Campbell, Motsinger,

Walsh, Rice, and McCurdy for lack of subject matter jurisdic.

tion and failure to state a claim.

3) To determine the sufficiency of plaintiff's answers to

defendants’ requests for admissions.

4) To order requests numbered 9, 10, ond 12 deemed as

admitted on the grounds that the answers given are sham and

not responsive to the requests.

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IN THE UNITED STATES DISTRICT COURT

POR THE DISTRICT OF OREGON

DOROTHY KERR, )

Plainuiff, )

) Civil No. 72-1017

™ )

LOWELL SCHOOL DISTRICT

71, et al,

Defendants

In accordance with the Opinion entered simultaneously

herewith, it is

ORDERED as follows:

1) The action against the Lowell School District 71 CLane

County School District No. 71) is dismissed,

2) Defendants’ motion to dieni the individual member:

of the school board is denied, and

4) Defendants shall supply plaintiff by March 20, 1974,

with the necessary documents to enable

deny the matters contained in defendants SS

sions numbered 9, 10, and 12; and plaintiff admit or deny

the matters contained in those requests by March 22, 1974,

BS

2. Order directing verdict in favor of individual defendants.

IN THE UNITED STATES DISTRICT COURT

POR THE DISTRICT OF OREGON

DOROTHY KERR, )

Plaintiff, )

ve. ) No 72-1017

) ORDER

LOWELL SCHOOL DISTRICT)

NO, 71, et al., )

Defendants. )

This case came on for trial on May 28, 1974. The case

was dismissed as to defendant Lane © School

No. 71. The trial proceeded between and the

other named defendants.

T and evidence were received from both parties.

After rested, defendants moved for directed verdict

in favor of all defendants.

1 granted defendants’ motion for the following reasons

1) The defendant Richard L. Harmon, of

the defendant school district, had no or author:

ity to renew or nonrenew plaintiff, ORS 342.505. Plaintiff

/s/ Otto Ri. Skopil, Je

United States District Judge

motion

Dated this 18th day of June, 1974.

board members

the Board of

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' Judgment on order

UNITED STATES DISTRICT COURT

POR THE DISTRICT OF OREGON

DOROTHY KEAK, )

Plaintiff, )

) CIV 72-1017

- ) JUDGMENT

LOWELL SCHOOL DISTRICT )

NO, 71, et al, )

Defendants )

Rased upon the Order filed contemporaneously herewith

IT IS ORDERED AND ADJUDGED that iff take

nothing and the case be and it is hereby d

DATED this 19h day of June, 1974

Robert M. Christ, Clerk

Cl

APPENDIX C

Statutory provisions involved.

28 U.S.C. §1331 (a) provides:

“The district courts shall have original jurisdiction of

all civil actions wherein the matter in controversy exceeds

the sum or value of $10,000.00, exclusive of interest and

costs, and arises under the constitution, laws, or treaties of

the United States.”

%8 U.S.C. §1343 provides:

“The district courts shall have original jurisdiction of

any civil action authorized by law to be commenced by

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Consti-

tution of the United States or by any Act of Congress

viding for equal rights of citizens or of all persons within

the jurisdiction of the United States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for the

protection of civil ow including the right to vote.”

42 U.S.C. §1983 provides:

“Every person who under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, sub-

jects, or causes to be sub , any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privi or immunities secured

by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress.”

The followin isions of Oregon Revised Statutes, which

were in effect an te cause of action arose and the complaint

filed, are also relevant.

C2

“30.260 Definitions for 30.260 to 30.300. As used in

ORS 30.260 to 30.300, unless the context requires other-

wise:

(1) ‘Governing body’ means the group or officer

in which the controlling authority of any public body is

vested.

(2) ‘Public body’ means the state and any depart-

ment, agency, board or commission of the state, any city,

county, school district or other political subdivision or

municipal or public corporation in any instrumentality there-

of.”

“30.265 Scope of liability of public body for torts. (1)

Subject to the limitations of 30.260 to 30.300, every public

body is liable for its torts and those of its officers, employees

and agents acting within the scope of their employment or

duties, whether arising out of a governmental proprietary

function.

(2) Every public body is immune from liability for:

(a) Any claim for injury to . . . any person...

resulting from an act or omission of an officer, employe or

agent of a public body when such officer, employe or agent

is immune from liability.

(d) Any claim based upon the performance of or

the failure to exercise or perform a discretionary function

or duty, whether or not the discretion is abused.

(3) Neither a public body nor its officers, employees

and agents acting within the scope of their employment or

duties are liable for injury or damaye:

C-3

(b) Because of an act done or omitted under ap-

parent authority of the law, resolution, rule or regulation

which is unconstitutional, invalid or inapplicable except

to the extent that they would have been liable had the law,

resolution, rule or regulation been constitutional, valid and

applicable, unless such act was done or omitted in bad

faith or with malice.”

“30.275 Content of notice of claim; who may present

claim; time of notice; time of action. (1) Every person

who claims damages from a public body for or on account

of any loss or injury within the scope of ORS 30.260 to

30.300 shall cause to be presented to the public body within

180 days after the alleged loss or injury a written notice

" stating the time, place and circumstances thereof, and the

amount of compensation or other relief demanded . . .

(3) No actions will be maintained unless such notice

has been given and unless the action is commenced within

two years after the date of such accident are all current.”

“30.300 ORS 30.260 to 30.300 exclusive. ORS 30.260

to 30.300 is exclusive and supersedes all home charter pro-

visions and conflicting laws and ordinances on the same

subject.”

“30.310 Actions and suits by governmental units. A suit

or action may be maintained by the State of or any

county, i ted city, school district or public

corporation of like character in this state, in its corporate

name, upon a cause of suit or action accruing to it in its

corporate character, and not otherwise, in the following

cases:

(1) Upon a contract made with a public corporation.

(2) Upon a liability prescribed by law in favor of the

public corporation.

C4

(3) To recover a penalty or forfeiture given to the pub-

lic corporation.

(4) To recover damages for injury to the corporate

rights or property of the public corporation.”

“30.320 Contract and other actions in suits against gov-

ernmental units. A suit or action may be maintained against

any county and against the State of Oregon by and through

and in the name of the appropriate state agency upon a

contract made by the county in its corporate character, or

made by such agency and within the scope of its authority;

provided, however, that no suit or action may be main-

tained against any county or the State of — upon a

contract relating to the care and maintenance of an inmate

or patient of any — or state institution. An action or

suit may be maintained against any other public corpora-

tion mentioned in ORS 30.310 for an injury to the rights

of the plaintiff arising from some act or omission of such

other public corporation within the scope of its authority.

An action may be maintained against any governmental

unit mentioned in ORS 30.310 for liability in tort only as

provided in ORS 30.260 to 30.300.”