Petition — Bullard Independent School District v. Brown

8 0 - 2 0 0 f) Office Supreme Court, U.S.

I: { Fae ID

MAY 27 1981

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

BuLLARD INDEPENDENT SCHOOL DISTRICT, ET AL,

Petitioners,

v.

JAMES N. BROWN

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Tyler, TX 75701

214-597-3301

Attorney for

Petitioners

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review are:

1. Whether the “speech” which forms the basis of re-

spondent’s cause of action qualified for protection un-

a the First Amendment. More particularly, under

the guidelines of Pickering v. Board of Education, 88

S.Ct. 1731, 391 U.S. 563, 20 L.Ed.2d 811 (1968),

whether the “speech” at issue:

(a) was made by respondent as a citizen or member

of the general public, and

(b) was made upon a matter of public concern or

upon an issue of public importance.

2. Whether the trial court erred vis a vis the holding

in Mt. Healthy City Board of Education vy. Doyle, 97

S.Ct. 568, 429 U.S. 274, 50 L.Ed.2d 471 (1971), by

charging the jury that:

«*** if Philli r Edward Coffey or the Bul-

lard Inde oat cheval District or any of its in-

dividual “sa took actions which were taken

because James Brown exercised his First Amend-

ment activities or even partially for that Rm: the

Defendants acted illegally.” (Tr. 623 , emphasis

added.)

LIST OF PARTIES

The following are the parties in the trial court and

in the appellate court whose judgments are sought to

be reviewed:

1. James N. Brown.

2. Bullard Independent School District*.

3. Phillip Irby.

4. Edward Coffey.

* While independent school districts have some charac-

teristics of municipal corporations ag Texas, Bullard Indepen-

dent School District has no paren a tions, subsidiaries,

or affiliates. Rule 28.1, ieee of the Supreme Court of the

United States.

SUBJECT INDEX

Ehet: ob Ra nnsisiscesciiccs cco ae, i

Reference to Official Reports 2o...0..0.....cecccs ae |

Grounds of Jurisdiction 000.000.000.000... ccsccescstsesseseeee cece: 2

Constitutional and Statutory

Prcpwienns TAUWONVOG ...osoc'siiaisscossssesssosenesosonssenesoseniss ee

Stahement of Tp COAG 5 :0:0..:o0s0dcenwaseeene 3

A. Facts Giving Rise to the Controversy... 4

1. Events Prior to November 18,1976 .... 5

(i) Teaching deficiency ............................. 5

(ii) Discipline; classroom control ............. 6

OO ae 6

2. The Faculty Meeting Incident ................... 8

B. The “*** even partially ***” Charge ............. 10

C. Procedural Context in which the

PD WS TI ois cissescaviccrsroucecssanerass 10

1. First Amendment Issue .........:...........0.0........ 10

2. The “see even partially *#*¢9) ~

Why the Writ Should Issue:

I. Plaintiff's S was not Constitutionally

Protected, Either Per Se or on Balance .......... 11

A. The Speech Per Se oo..............ccceeeee 12

B. The Speech on Balance .....................005. 15

II. The Charge that Defendants’ Activities

were illegal if taken “*** even hs

tially ***” in Retaliation was Erroneous ..... 19

PII oscsesvssesoevesnosssusiesienbhanstesenseniinieuaaaaaaaaaee 22

Cee acces scssnsnnscnsnsrerecisetsnntntigstanmnniduaianiananaie 23

LIST OF AUTHORITIES

Butler v. Hamilton, 542 F.2d 835, 838 (10th

SN PUI sccsisasacinctichsccansedupisiodlbaabusagiiimentcatnlenns 15, 16, 17

Chitwood v. Feaster, 468 F.2d 359, 360-361

I I I ior csixsas tec sckensabidasembiatienies 15, 16, 17

Clark v. Holmes, 474 F.2d 928 (7th Cir.

BTR), COR, GM, SEE UT. GIB cis scsscscccnsecesscesosesosens. 17

Federal Rules of Civil Procedure, Rule 51 ................ 11

Federal Rules of Civil Procedure,

OE RRR OSE aera ane ree 22

Givhan v. Western Line Consolidated Independent

School District, 99 S.Ct. 693, 439 U.S.

410, 58 L Re lak, 13

Goss v. San Jacinto Junior College, 588 F.2d

Ds Be I I nash cccdcssshcecotnienatacoanncicisactesensves 19

ar v. Bonner, 578 F.2d 136, 141 (5th Cir.

I paccceaseds disci ek cates dct Ia cicaseses eedmendianaeconnabsecns 19

Janusaitis v. Middleberry Volunteer Fire

Department, 607 F.2d 17 (2nd Cir. 1979) ............ 17

Marwil v. Baker, 499 F. Supp. 560, 571 (D.C.

I I oss aopctciccsc cnt anceeeseihipacenanetanesven os 15

Meyr v. Board of Education of Affton School

District, 572 F.2d 1229 (8th Cir. 1978) .................. 19

Mt. Healthy City Board of Education v. Doyle,

97 S.Ct. 568, 429 U.S. 574, 50 L.Ed.2d

RRR IES oie ha sie .. 11, 18, 21

Perry v. Sindermann, 92 S.Ct. 2694, 408 U.S.

593, 33 L.Ed.2d 570 (1972) ............... 11, 12, 13, 15, 18

Pickering v. Board of Education, 88 S.Ct.

1731, 391 U.S. 563, 20

LEd.2d 811 (1968) oo..ccccccccccccsseeccesssseeeee 12, 13, 15, 18

Rules of the eens Court of the United

States, Rule

Selzer v. Fleisher, 629 F.2d 809 (2nd Cir.

eat iar rabcesiasebar nce eokeney ses ssietiavi sc:

Stoddard v. School District No. 1, Etc.,

590 F.2d 829 (10th Cir. 1979) 0 wo...

ec) ae |) hn a

OT BO ilies

RE RA ere te eons en aaa

Webster’s New Twentieth Cen Dictio

a Publishing

Unabridged 2nd Ed.) , World

E.R. ieee

Williams v. Day, 553 F.2d 1160, 1162 (8th

BN I te aac in abathesess Petinieatantimasensoainioions,

1 CREE REET E EHO EH HEE H EE HOHE EEE EEE EEe

Schmidt v. Freemont County School District,

etc., 558 F.2d 982, 984-985 (10th Cir. 1977) .

19,20

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

BULLARD INDEPENDENT SCHOOL DISTRICT, ET AL,

Petitioners,

v.

JAMEs N. Brown

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To The Honorable Supreme Court of The United States:

Come now Bullard Independent School District,

Phillip Irby, its former superintendent, and Edward

Coffey, a principal in the district, pursuant to Rule 21,

Rules of the Supreme Court of the United States,

and petition for writ of certiorari to review a decision

and judgment of the Court of Appeals for the Fifth

Circuit:

REFERENCE TO OFFICIAL REPORTS

The decision of the court of appeals is officially

reported as: Brown v. Bullard Independent School

District, et al, 640 F.2d 651 (5th Cir. 1980).

2

GROUNDS OF JURISDICTION

The jurisdictional bases upon which the petition is

founded are:

1. The opinion and judgment of the court of appeals

are dated March 25, 1981. (See Appendix A & B.)

2. A timely motion for rehearing was overruled by

the court of appeals on April 17, 1981. (See Appen-

dix C.)

3. Under 28 U.S.C., § 2101(c), the time period for

filing this petition runs to July 16, 1981. The mandate

has been stayed by the lower court to and including

May 30, 1981.

4. The jurisdiction of the court is invoked under 28

U.S.C., § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The provisions of law applicable to this case are:

1. The First Amendment to the Constitution of the

United States which, in pertinent part, provides:

“*** Congress shall make no law abridging... .

the freedom of speech ***.”

2. The Fourteenth Amendment to the Constitution

of the United States to the extent that the following

language makes the First Amendment freedom quoted

above applicable to the states:

“*** No state shall make or enforce any law which

shall abridge the so ay or immunities of citizens

of the United States; nor shall any state deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

3. The familiar language of 42 U.S.C., § 1983, which

provides the following federal cause of action:

“Every person who, under color of any statute

. . . of any State or Territory subjects, or causes

to be subjected, any citizen of the United States

. . . to the deprivation of any rights, privileges, 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 proceeding for redress.”

STATEMENT OF THE CASE

James Brown brought this suit under 42 U.S.C.,

§ 1983, alleging he was disciplined in and finally not

rehired to his position as a public school teacher in

the Bullard Independent School District, because of

his exercise of speech protected by the First Amend-

ment. (R. 78-82.)* Defendants to this suit are the

school district (by and through its trustees), Phillip

Irby, a superintendent who placed Brown on “proba-

tion” and later recommended his contract not be re-

newed, and Edward Coffey, whose relation to the

events is remote; he participated in some of the admin-

istrative decisions affecting Mr. Brown.

Although remanding on an attorneys fee point not

involved here, the Court of Appeals affirmed the lia-

bility aspects of the following — described judgment.

(Appendix A.)

* “R” references are to the volume of pleadings and other

legal instruments. “Tr.” refers to the transcript of testimony.

For clarity, the parties will be referred to by proper name or

by trial court designation.

4

The case was tried to a jury which answered special

interrogatories favorable to Mr. Brown. (R. 3.)* The

trial court disregarded certain findings of punitive dam-

ages (R. 3-5), but otherwise entered judgment on the

verdict for $17,500.00, after reducing lost wages by

sums earned in mitigation. Equitable reinstatement,

attorney’s fees, and costs were also awarded. (R. 4-5.)

Briefly, the factual basis for the cause of action is

as follows:

A. Facts Giving Rise to the Controversy.

The signal event in this case is a routine faculty

meeting in which Brown, prompted by an admitted

personal resentment against Superintendent Irby (Tr.

173, lines 12-17), directed certain innocuous comments

at the process for teacher evaluation. (R. 172-173.)

Brown claimed First Amendment protection for this

“speech” and sued on the ground that its utterance

caused the school district to “probate” him and, later,

not to renew his teaching contract. (R. 50, 78-82.)

It is helpful to cast these comments against the

immediate history leading up to the meeting in which

they were made and the nature of the relationship be-

tween Brown and the school district’s administrative

staff, to wit:

* Summarized, the verdict was: (1) Brown’s non-renewal

violated his First Amendment rights. (2a) Irby and Coffey

were not entitled to “good faith” immunity. (2b) The majority

trustees voting for non-renewal were not entitled to “good

faith” immunity. (3) Irby and Coffey acted with malice toward

Brown. (4-6) Brown’s damages were $22,000 lost wages, $7,500

ey : rs) and $7,500 punitive damages against Irby and

ey. e

1, Events Prior to November 18, 1976: Bullard hired

Phillip Irby in 1975 as its superintendent. (Tr. 238.) A

principal objective of his employment was to remedy

a conspicuous looseness in the organization and opera-

tion of the district; particularly, it was hoped that he

could effectuate a credible teacher evaluation system

to correct a “ *** certain laxity *** ” in teacher per-

formance. (Tr. 239, 319, 350.)

Irby’s first encounter with Brown was both auspi-

cious and indicative. Importuned to augment Brown’s

income via a school bus driver’s position (‘Tr. 240-241),

Irby arranged for Brown to have a “half route”. In

repayment for this kindness, Brown only thumbed his

nose and demanded a “whole route” or nothing at all

(Tr. 156) — which Irby ultimately arranged. (Tr. 156,

241.)

Matters did not improve from that rocky start. The

ensuing differences with Brown over his teaching per-

formance, his attitude, his contribution to a harmonious

working atmosphere, his compliance with school policy,

and his disrespect for the administration are too numer-

ous to detail without unduly lengthening the petition,

but include:

(i) Teaching deficiency: Brown was noted to have

teaching deficiencies, such as an inability to communi-

cate math concepts (Tr. 243, 262), substandard, half-

hearted classroom preparation (Tr. 255-256, 277, 339,

346), failure to effectively “teach” in the classroom

(Tr. 245, 279, 328, 338, 343), lack of individual atten-

tion to students’ unique learning abilities or difficulties

(Tr. 253, 274, 344), failure to use visual or other teach-

ing aids (Tr. 274-275), and maintenance of a sterile or

“ *** drab *** ” teaching atmosphere in the classroom.

(Tr. 274-275, 323.) These matters were the object of

considerable public complaint (twice as great as any

other teacher in the system — Tr. 244, 321) and open

concern by the trustees. (Tr. 244, 262, 267-268, 352,

369, 385, 394, 408.)

(ii) Discipline; classroom control: It was equally

noted that Brown’s classrooms were unruly, boisterous,

and uncontrolled (Tr. 243, 274-275, 335, 337), punctu-

ated with inappropriate insults, bickering, name calling,

and joking between teacher and student. (Tr. 246-247,

274-275, 321-322, 329, 335, 337, 339.) These matters,

too, were the subject of public complaint and repeated

discussion with the plaintiff as needed areas of improve-

ment. (Tr. 246-247, 274-275, 321-322, 329, 335, 337,

339.)

(iii) Defiance of policy and authority: The adminis-

tration was also bothered by what it perceived to be

Brown’s persistent refusal to comply with district pol-

icy and simple directives of the administration regard-

ing energy conservation (Tr. 249), equipment usage

reports (Tr. 287), classroom cleanliness (Tr. 276), re-

quired covering of books (Tr. 275, 323), procedures for

dusting erasers (Tr. 286-287), playground and recrea-

tion times (Tr. 330), proper channels of communica-

tion (Tr. 85-87, 272-273), and required hours of work.

(Tr. 330.) So perplexing was this problem, an assess-

ment of Brown’s behavior and attitude by his superior

was that: “ *** It seemed like anything we asked him

to do, he would do just the opposite to... defy

authority: *** ”. (Tr. 287, lines 2-3.)

The foregoing matters were the subject of concern

(Tr. 243-250), and, finally, a formal evaluation was

7

held in February of 1976 in which certain of the weak-

nesses were noted. (PX 2.) From an administrative

viewpoint, things did not improve after the February

evaluation. (Tr. 252.) An informal conference was held

in May of 1976 between Superintendent Irby and

Brown during which problem areas were reiterated.

(Tr. 252-254.) At this session, Brown refused to ack-

nowledge deficiency or need for improvement but

turned the affair into a forum for venting his personal

resentment against the superintendent and his resis-

tance to administrative control in general (Tr. 255-

256) ; e.g., he accused Irby of using Bullard as a “ ***

stepping stone ***” to advance his career and, by

reason of being subjected to evaluation by Irby, Brown

called him an “*** autocrat ***”. (Tr. 254.) The

meeting ended with a warning to Brown that he must

improve and would be evaluated again in the fall. (Tr.

254.)

The following school year (1976-77) commenced

with the Trustees, in open meeting, expressing serious

concern (uninfluenced by the superintendent) over

Brown’s inability to communicate math concepts and

relate to his students. (Tr. 162, 351-352, 367, 394, 408.)

Principal Coffey thereafter undertook regular observa-

tion of Brown’s classroom and noticed no improvement

in the problem areas. (Tr. 319, 328.) Coffey’s criticisms

and suggestions for betterment were met with a fail-

ure to admit deficiency or effectuate improvement.

(Tr. 321-322.)

This was the state of affairs, from the administra-

tion’s vantage point, which existed on November 18,

1976, the day of the fabled faculty meeting which is

the core of Brown’s suit.

2. The Faculty Meeting Incident. The faculty meet-

ing of November 18 was a regular meeting with no

special purpose other than to discuss general school

matters. (Tr. 113.)

In the midst of a discussion concerning Bullard’s sick

leave policy, one teacher questioned the logic of per-

mitting leave for illness or death of one class of relative

but not another. (Tr. 114-115, 265-266, 323-324.) As

sick leave was a state-wide policy, Mr. Irby remarked

that the teacher’s agonizing was a bit “ *** nit-pick-

ing *** ” on a matter over which the local district had

no control. (Tr. 265-266.)

At this juncture, suddenly and without provocation,

Brown blurted out that he thought the administration

was “*** nit-picky ***”. (Tr. 115.) When pressed

further (Tr. 266), Brown stated that “*** some of

the things on our teacher evaluation could be consid-

ered nit-picky *** ”. (Tr. 115.) Perhaps this incident,

which surely lasted less than i5 seconds, is best de-

scribed in plaintiff’s own words:

“A To the best of my recollection I said, ‘Mr.

Irby, we feel — I feel that the administration

is sometimes picky.’

e*e#ess

All right, sir. What did he do?

He asked me to explain.

Go ahead.

I told him that I thought some of the things

on our teacher evaluation could be considered

nit-picky.

And did you explain any further?

>oOo>rs

©

A He made the statement that we’re not here

to argue about that, and that was all that

was said. ***” (Tr. 114, lines 19-21; Tr. 115,

lines 8-15.)

The parties stipulated that the object of Mr. Brown’s

remarks was the content of evaluation forms employed

by the administration in the teacher evaluation process.

(Pre-trial Order — Statement of Uncontested Facts,

#13, R. 52.)

That innocuous episode is the cause celebre which

has marshalled the forces of the judicial process against

defendants. Brown claims he was told a probationary

status given him the day after the faculty meeting was

“*** because of ***” his comments (Tr. 118); he

claimed further that these remarks were the motivat-

ing factor behind the subsequent non-renewal of his

contract. (Tr. 520.)* The probation and failure to re-

hire are not disputed; the motivation behind them is.

Brown’s supposition of retaliation was vehemently

denied by defendants. (Tr. 277, 284-286, 305-306, 350-

428.) However, defendants are not asking the court to

out 2, rhe remarks at the facul meeting were the ——

an

put in issue by 6-54. 4 er, the evidence,

ment. (See R. 53 Tr. 489-406 511-519.) However, the

trict court charged’ tha addition protected were

Brown’s “*** private oT ane ri with the

the Superinten , e Trustee members which were related to

the conditions of his employment ***.” (Tr. 522.) As these

“*** conversations ***” are nowhere defined, either leading,

evidence, or nen, § fy oo basis for the — = 0 pate

defendants cannot detail them or discuss them

gently for Se. 1 yea them through~t the + ay as

we J ——S- and ons

fom had wth the superinten ent, the , or the trus-

Lead concerning his job performance alert ’pasis for his

10

resolve a factual dispute. In the legal syllogism under-

lying Brown’s case, the question of cause and effect is

secondary to the question of First Amendment protec-

tion, ie., whether the “speech” at issue comes within

the ambit of the First Amendment. That is the first

issue defendants raise.

B. The “ *** even partially *** ” Charge.

The second thrust of the petition focuses upon that

portion of the charge by which the district court, er-

roneously we believe, told the jury:

“*** if Phillip Irby or Edward Coffey or the Bul-

lard Independent School District or any of its

individual Trustees, took actions which were taken

because James Brown exercised his First Amend-

ment activities or even partially for that reason,

the Defendants acted illegally.” (Tr. 523, lines

8-14, emphasis added.)

Defendants submit that a charge which brands con-

duct as “*** illegal ***” when “ *** partially “**”

influenced by the exercise of protected speech flaunts

the holding in Mt. Healthy, supra, and denies defen-

dants benefit of the two-prong test enunciated in that

decision.

C. Procedural Context in which the Points were

Raised.

The points presented here were raised in the follow-

ing manner:

1. First Amendment Issue: The First Amendment

issue was raised in defendant’s motion for instructed

verdict (Tr. 212-216), subsequently renewed (Tr. 481-

482), with the following assignment:

11

“*** under the balancing of interests test this is

—_—> sort of conduct that is not protected b

the First Amendment, Freedom of Speech provi-

sion.” (Tr. 216, lines 2-6.)

Both motions were overruled. (Tr. 223-224, 482.)

2. The “*** even partially ***” Charge: In con-

formity with Rule 51, FeJeral Rules of Civil Procedure,

defendants objected to the “ *** even partially ***”

test of illegality on the ground that:

“*** @ partial retaliation is not the standard or

measure that should be used under the Mount

Healthy case, but on the contrary, such conduct is

required to be the motivating cause for the action

taken.” (Tr. 538, lines 1-7.)

This objection was, also, overruled. (Tr. 539.)

REASONS WHY THE WRIT SHOULD ISSUE

I,

PLAINTIFF'S SPEECH WAS NOT

CONSTITUTIONALLY PROTECTED, EITHER

PER SE OR ON BALANCE,

The threshold burden of a plaintiff in these cases

is to prove protected speech is the root cause of the

conduct condemned. As succinctly put in Mt. Healthy

City Board of Education v. Doyle, 97 S.Ct. 568, 429

U.S. 574, 50 L.Ed.2d 471 (1977):

“*** Tnitially .. . the burden was properly placed

upon respondent to show that his conduct was

protected ***” (429 U.S. 287, 50 L.Ed.2d 450.)

As is revealed by analysis of Perry v. Sindermann,

92 S.Ct. 2694, 408 U.S. 593, 33 L.Ed.2d 570 (1972) and

12

Pickering v. Board of Education, 88 S.Ct. 1731, 391

USS. 563, 20 L.Ed.2d 811 (1968), ascertainment of First

Amendment protection is a two-step process which

asks these questions:

(i) Whether the speech is protected per se, ie.,

considered on its own, and

(ii) if so, whether it is protected in context, i.e.,

whether the legitimate ends of the school in promoting

“*** efficiency of the public services it performs

through its employees *** ”, Pickering, supra, 391 U.S.

568, 20 L.Ed.2d 817, outweighs the teacher’s right of

expression.

Defendants contend that the speech which supports

the cause of action does not meet either standard,

to wit:

A. The Speech Per Se: One element which rings

loud and clear from Pickering and Sindermann is that,

judged alone, a public employee’s speech must be

transcendent in character before it assumes a consti-

tutional mantel. In defining the character of a public

employee’s speech subject to protection, the repeated

use, in those cases, of such phrases as “general public

interest”, “legitimate public concern”, “issues of public

importance”,* and “matters of public concern”** make

it manifest that protected employee’s speech must at-

tain a loftiness amounting to more than verbalization

of one’s pique on mundane or routine matters personal

only in quality. Likewise, in characterizing the stance

from which such speech issues, the use of phrases such

* 391 U.S. 568, 571, 573, 574, 20 L.Ed.2d 817-821.

** 408 U.S. 598, 33 L.Ed.2d 578.

13

as “interest of the teacher, as a citizen” and “member

of the general public”* makes it equally clear that

the speech must be motivated from beyond one’s

uniquely personal situation, i.e., its exercise must have

its roots in the broad rights of citizenship.

Concedely, the relation of teacher and school dis-

trict may involve public issues which affect citizens

generally. In Pickering, for example, the speech con-

cerned school funding which had been the object of

heated public debate and a disputed public bond issue.

In Sindermann the issue related to a teacher’s rights

to debate publicly and participate as a citizen in

passage of legislation vital to his interests. Givhan**

involved criticism of school policy believed to foster

racial discrimination —a vital public issue generally,

but more acute in that case since the school was under

a desegregation order.

There is no requisite nexus of comment and public

issue, no legitimate urging of a fundamental right of

citizenship in Brown’s “ *** nit-picky *** ” comment

or in any of the “ *** private conversations *** ” he

may have had with school officials. There is no evi-

dence that the general subject of teacher evaluation

was a public issue in the Bullard District. There is no

evidence that the procedures for teacher evaluation

were the center of controversy among teachers them-

selves, or teachers and the administration, much less

the subject of public controversy. On a much lower

level, there is no evidence that the contents of a

teacher evaluation form had achieved or could achieve

* 391 U.S. 568, 573, 20 L.Ed.2d 817, 820.

** Givhan v. Western Line Consolidated Independent School

District, 99 S.Ct. 693, 439 U.S. 410, 58 L.Ed.2d 619 (1979).

14

the exalted status of a public issue, yet, it is precisely

at this lowest level at which Brown’s comments were

aimed; recall he stipulated that the remarks at the

November 18 meeting were verbal complaints “ ***

about teacher evaluation forms *** ”. (Pre-trial Order,

Stip. #13, R. 52.)

Nor is there any concealing the stance from which

the faculty meeting comments were made.

Brown confessed his curious personal resentment of

Superintendent Irby for the latter’s choice of residence

and his conclusion that the superintendent was using

Bullard as a “ *** stepping stone *** ” to further his

career. (Tr. 110-111, 158, 254.) Significantly, he con-

fessed his “ *** nit-picky *** ” comments were an

emotional outcropping of that personal resentment. He

testified:

“Q *** When Mr. Irby made the remark, that

this discussion about sick leave had become

picky, this prompted you to let your old re-

sentments against Mr. Irby come out in this

voluntary statement in the faculty meeting;

is that right, sir?

“A Yes. ***” (Tr. 173, lines 12-17.)

Viewing Brown’s “ *** nit-picky *** ” comment in

its most charitable light, ascribing to it the most laud-

atory, far-reaching purpose possible, still, it rises no

higher than a comment upon a uniquely internal, in-

deed esoteric, subject matter, and it appears decidely

to have been made from a personal stance for percu-

liarly personal reasons with an isolated personal target

(the superintendent) as its object.

To classify such comments as involving a matter of

public importance made to vindicate fundamental

15

rights of citizenship is virtually an affront to the legi-

timate rights protected by the First Amendment.

Clearly, neither the quality of the comments’ subject

matter nor the stance from which they were made

qualifies them under the Pickering/Sindermann stan-

dards. The same would be true (even more so) of

the so-called “*** private conversations ***”. See

Schmidt v. Freemont County School District, etc.,

558 F.2d 982, 984-985 (10th Cir. 1977); Chitwood v.

Feaster, 468, F.2d 359, 360-361 (4th Cir. 1972); Butler

v. Hamilton, 542 F.2d 835, 838 (10th Cir. 1976); Mar-

wil v. Baker, 499 F. Supp. 560, 571 (D.C. Mich. 1980).

B. The Speech on Balance: If Brown’s speech should

be protected per se, surely, the now-famous Pickering

balance, stated below, removes that protection, be-

cause:

“*** the State has interests as an employer in

regulating the speech of its employees that differ

significantly from those it possesses in connection

with regulation of the speech of the citizenry in

eneral. The problem in any case is to arrive at a

ce between the interests of the teacher, as a

citizen, in commenting upon matters of public con-

cern and the interests of the State, as an employer,

in promoting the efficiency of the public services it

performs through its employees.” (391 U.S. 568,

20 L.Ed.2d 817)

In striking the requisite balance, in law, these un-

disputed factors are important here:

(i) Bullard is a small school system where harmoni-

ous working relationships and ¢ ninistration/teacher

cooperation are at a premium.

(ii) Bullard had experienced a laxity in teacher per-

formance and was legitimately entitled to designate

16

teacher evaluation, team spirit, and harmonious work-

ing relationships as high priorities.

(iii) Brown’s Geet nit-pic “* #9? comments at the

faculty meeting did not emanate from his posture as a

citizen seeking to vindicate classwide rights, but were

the product of admitted personal resentment stemming

from application of administrative standards to his

personal conduct and performance, making his “speech”

that type of personal attack or internal matter put

outside the realm of First Amendment protection by

(iv) The “*** nit-picky ***” comments occurred in

a closed meeting devoted to administrative matters and

related to classically internal issues.

(v) The faculty meeting comments were but a small

portion of a long series of disputes and difficulties be-

tween Brown and the administration confined to

Brown’s attitude, conduct, and proficiency, but unre-

lated to any overriding public issue.

(vi) The “other conversations” shown by the record

are no more than what is described in the cases as

bickering, running disputes and strained relationships

the product of purely personal, internal differences.

Chitwood v. Feaster, supra at 360-361; Butler v. Hamil-

ton, supra, at 838.

Weighing the vested interest of Bullard in promoting

effective education through qualified teachers against

the non-public, internally-oriented, personally moti-

vated comments by Brown in the faculty meeting and,

particularly, adding to that balance the inopportune

timing and setting of the comments, a critical factor

17

added to the weighing process by the Givhan decision,*

the balance tips heavily in Bullard’s favor, clearly per-

mitting it to take into consideration Brown’s comments,

and especially the attitude reflected thereby, in its

employment decisions. On balance, the comments were

not protected. Chitwood v. Feaster, supra, 468 F.2d 359

(4th Cir. 1972); Butler v. Hamilton, supra, 542 F.2d

835 (10th Cir. 1976); Clark v. Holmes, 474 F.2d 928

(7th Cir. 1972), cert. den. 411 U.S. 972; Janusaitis v.

Middleberry Volunteer Fire Department, 607 F.2d 17

(2nd Cir. 1979). The same is true of the “*** private

conversations ***”, whatever they may be, for the

reasons expressed in Butler v. Hamilton, viz: Teachers

whose jobs are terminated because of “*** strained

relationships, continuing disputes, [and] repeated alle-

gations ***” are “*** deprived of no constitutional

rights. ***” (542 F.2d 838.) Cfr. Chitwood v. Feaster,

supra, at 360-361.

CONCLUSION

It is no secret that Brown, in the final analysis,

espouses a rule which says that no public employment

decision may be based upon any aspect of the spoken

word, regardless of how such speech may reflect upon

ability, attitude, and working relationships. Such a view

is at the core of the judgments below, but it is not the

rule of Pickering, Sindermann, and Mt. Healthy. Nor

should it be!

* “Private expression, however, may in some situations

bring additional factors to the Pickering calculus. When a gov-

ernment employee personally confronts his immediate superior,

the employing agency’s institutional efficiency may be threat-

ened not only by the content of the employee’s message but

also by the manner, time, and place in which it is delivered.”

18

If one accepts the tenet that the public has a legiti-

mate interest in dispensation of quality education

through capable teachers, surely it is constitutionally

permissible for a school system to evaluate teachers on

the basis of what they “say”. Indeed, how can a teach-

er’s ability to communicate with students be judged

separate and apart from what he says in teaching? How

can the spirit of cooperation and conformity to the

appropriate ends which a school system seeks to achieve

be determined if not partially on verbal pronouncements

reflective of teacher attitude? How can a harmonious

educational atmosphere be maintained in promoting an

efficient, effective school system if teacher utterance at

odds with those ends cannot play a part in staffing

decisions?

If the type of speech involved here cannot be the

basis of employment decisions, we have progressed far

beyond the concern expressed by this court in Mt.

Healthy, supra, that a teacher could be placed “*** in

a better position ***” by the exercise of speech (429

U.S. 285, 50 L.Ed.2d 482). We have come, instead, to

a point where teachers can never be evaluated, dis-

ciplined, dismissed, or non-renewed, as any such em-

ployment decision would inherently and ultimately

involve the spoken word. As cogently warned in Chit-

wood v. Feaster, supra, a teacher “*** does not immu-

nize himself against loss of his position simply because

his non-cooperation and aggressive conduct are verba-

lized.” (468 F.2d 360-361, emphasis added.)

THE CHARGE THAT DEFENDANT’S ACTIVITIES

WERE ILLEGAL IF TAKEN “ *** EVEN

PARTIALLY *** ” IN RETALIATION

WAS ERRONEOUS.

Under Mt. Healthy, plaintiffs in these cases, first,

must (i) prove that the exercise of a First Amendment

right was a “*** substantial ***” or “*** motivating

***” factor inducing retaliation, whereupon (ii) the

employer may defend by proof that it would have taken

the same action “*** even in the absence of the pro-

tected conduct.” (429 U.S. 287, 50 L.Ed.2d 484.) Cfr.

Goss v. San Jacinto Junior College, 588 F.2d 96, 99 (5th

Cir. 1979) ; Hastings v. Bonner, 578 F.2d 136, 141 (5th

Cir. 1978); Meyr v. Board of Education of Affton

School District, 572 F.2d 1229 (8th Cir. 1978).

There are two conspicuous and fatal flaws in the trial

court’s “*** even partially ***” charge when measured

by the foregoing standard, to wit:

First of all, the word “substantial”, which Mt.

Healthy equated with “motivating”, means “real”,

“true”, or “of considerable size or amount”. Webster’s

New Twentieth Century Dictionary (Unabridged 2nd

Ed.), World Publishing Co., 1971, p. 1817. Those two

words require, as a standard of liability, unconstitu-

tional conduct which is more than a trivial, incidental,

or remote factor. Had this court wished the first prong

of the Mt. Healthy test to cover action prompted to

any degree by First Amendment exercises, it could have

adopted as a test the FELA standard of “*** in whole

or in part ***”. Use of the words “substantial” and

“motivating” signifies a conscious adoption of a more

onerous standard which can accommodate a result par-

tially caused or influenced by First Amendment con-

duct without actually running afoul of the constitution.

This is obviated by the Court’s holding that:

“*** the difficulty with the rule enunciated by the

District Court is that it would require reinstate-

ment in cases where a dramatic and perhaps abra-

sive incident is inevitably on the minds of those

responsible for the decision to rehire, and does in-

deed play a part in that decision — even if the

same decision would have been reached had the

incident not occurred. The constitutional principle

at stake is sufficiently vindicated if such an em-

ee ert ne Sane 8 pene ae

not engaged in the conduct. ***” (429 U.S.

285-286, 50 .2d 483.)

The word “partially”, which the trial court charged

as a standard for liability, on the other hand, commonly

means “*** in part, not total ***”. Webster’s id., at

p. 1306. Its utilization here meant the jury could find

defendants liable if it believed their decisions were based

even one-half of one percent on First Amendment asser-

tions. That is, quite frankly, irreconcilable with the

Mt. Healthy requirement that the protected conduct

be “substantial” or “motivating” in the employment

decision. The requirement of such a lesser degree of

causation severely, and in prejudice to defendants, re-

duced Brown’s burden of proof.

The second problem with the “*** even

***” charge is the juxtaposition of the word “par-

tially” with “illegally”. That implied to the jury that

defendants had committed a §1983 violation (i.e.,

that they “*** acted illegally ***’), if it were found

their conduct was motivated to any degree by retalia-

tion. But the second prong of the Mt. Healthy doctrine

anticipates or assumes that conduct in question is

motivated, to some extent, by First Amendment con-

siderations, so there can be no reconciliation between

the approved defense and a charge like the one given

here which renders a defendant liable for a degree of

conduct considerably less than “substantial”.* Ergo,

the court’s charge literally obliterated defendants’ af-

firmative, second-prong defense.

Courts which have considered this problem agree

with defendants. In Williams v. Day, 553 F.2d 1160,

1162 (8th Cir. 1977), the court commented that a “ ***

partial factor ***” test was “*** subject to evalua-

tion ***” in light of Mt. Healthy. In Stoddard v.

School District No. 1, Etc., 590 F.2d 829 (10th Cir.

1979), an “*** even in part ***” charge was found

to be erroneous vis a vis Mt. Healthy. The court in

Selzer v. Fleisher, 629 F.2d 809 (2nd Cir. 1980), on its

own motion, noted that a “*** caused or contributed

***” standard of causation “*** misstated the law

by setting too low a level of proof required for liability

***”. that it “*** casts too broad a net and should

* The distinction was crucial in this case. Mr. Irby was

candid to say that Brown’s faculty meeting remarks were in-

fluential in the later probation to the extent “*** it reminded

me... that this is the man I had talked to much earlier, and

I needed to and had told him that I would evaluate him in the

fall, ***”. (Tr. 305.) Such motivation clearly condemned by

the court’s yi is just as clearly permissible under Mt.

Healthy. (“*** (the) candidate ought not to be able, by engag-

ing in such conduct, to prevent his sepeoee from assessing h

pecrormpanos record and reaching a decision not to rehire on the

is of that record, — because the protected conduct makes

the employer more certain of the correctness of its decision.”

(429 U.S. 286, 50 L.Ed.2d 483.)]

have omitted the italicized phrase ***”. (629 F.2d

809, n. 1.)

The decision below, standing at odds with those

holdings, creates a conflict among the circuits on an

issue of constitutional dimension which should have

uniform application in all circuits. As the Fifth Cir-

cuit’s approved standard is clearly wrong, defendants

were denied a proper submission of the basic question

of liability, and the cause should at least be reversed

for that error. Rules 51 & 61, Federal Rules of Civil

Procedure; Stoddard v. School District No. 1, Etc.,

supra at 834,

WHEREFORE, PREMISES CONSIDERED, petitioners pray

that their petition be granted, that the case be set

down for briefing and oral argument, and, upon final

hearing, that the judgments of the courts below be

reversed and the cause remanded for entry of judg-

ment that respondent take nothing or, alternatively,

for retrial. Petitioners additionally pray for such other

and further relied to which they may justly be entitled

at law or in equity.

CERTIFICATE OF SERVICE

It is hereby certified that a true and correct copy of

the foregoing petition for writ of certiorari to the

United States Court of Appeals for the Fifth Circuit

has been served upon counsel for respondent, Mr.

Larry R. Daves, Attorney at Law, P. O. Box 1115,

Tyler, Texas 75710, by placing same in the United

States mail rly addressed and postage prepaid,

on this of May, 1981.

* ite

MI L A. HATCHELL

APPENDICES

Appendix A: The Opinion of the Court of Appeals.

Appendix B: The judgment of the Court of Appeals.

Appendix C: Order of the Court of Appeals or Motion

for Rehearing.

A-1

APPENDIX A

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

Unit B

March 25, 1981

NO. 79-3476

JAMES N. Brown

Plaintiff-Appellee

Cross-Appellant,

vB.

BULLARD INDEPENDENT SCHOOL DiIsTRICT, ET AL,

Defendants-Appellants

Cross-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

Before AINSWORTH and SAM D. JOHNSON,

Circuit Judges, and HUNTER’, District Judge.

PER CURIAM.

This case arose out of the non-renewal of the contract

of an untenured public school teacher. James Brown

* United States District Judge of the Western District of

Louisiana, sitting by designation.

A-2

brought suit against the Bullard Independent School

District and its trustees, both officially and individually,

for monetary damages and equitable relief stemming

from the district’s failure to renew his contract as a

non-tenured teacher for 1977-78, alleging that he was

denied renewal of his contract in retaliation for his

exercise of First Amendment rights. The same relief

was sought against Phillip Irby, the superintendent,

and Edward Coffee, plaintiff’s supervising principal.

Defendants requested and were granted a trial by jury.

The jury’s findings, in response to special interroga-

tories, are summarized as follows:

Question 1 The jury found that James N. Brown’s

non-renewal was in violation of Mr. Brown’s rights

under the First Amendment.

Question 2a The jury found Phillip C. Irby and

Edward F. Coffee, school administrators, were not

entitled to a — faith” immunity defense from

individual liability.

Question 2b The jury found that George M. Arnold,

Bob Coleman, David Campbell, and Kenneth

King, members of defendant school board, were not

entitled to a “ faith” immunity defense from

individual liability.

Question 3 The jury found that Phillip C. Irby and

Edward F. Coffee acted with malice, ill will, or the

ific purpose of violating Mr. Brown’s First

peony Ms rights.

Question 4 The jury found that $22,000 would fairly

and reasonably compensate Mr. Brown for his lost

wages.

Question 5 The jury found that $7,500 would fairly

and reasonably compensate Mr. Brown for the

A-3

mental anguish caused by the denial of his First

Amendment rights.

Question 6 The jury found that punitive damages

should be assessed against Phillip C. Irby and

Edward F. Coffee in the amount of $7,500.

The ultimate judgment, partially sustaining defend-

ants’ motion for judgment non obstante veredicto, dis-

regarded the punitive damage finding, mitigated lost

wages by the sum of plaintiff’s post-teaching earnings

and awarded plaintiff $17,500, plus attorney’s fees of

$5,000. Equitable relief in the form of mandatory rein-

statement was also ordered.

Defendants insist that the judgment must be set

aside in its entirety because the speech involved was

not protected by the First Amendment and that the

record will not support a judgment premised upon an

unconstitutional retaliation. Plaintiff has filed a cross-

appeal contending that this Court should a) affirm the

jury and trial court’s judgment against each defendant,

and b) reverse and remand the trial court’s disregard

of punitive damages and award of attorney’s fees.

[1,2] Defendants insist that the statements alleged

to have caused plaintiff’s negative evaluation and non-

renewal were not protected speech under the First

Amendment. Defendants’ position is no different now

than it was in the district court, i.e., in context, plain-

tiff’s statements were not protected because they in-

volved internal matters relative to efficient functioning

of the school system and were not related to any issue

of public importance upon which plaintiff was com-

menting as a citizen. We regard the ultimate deter-

A-4

mination of whether an individual’s speech was con-

stitutionally protected “to be a question of law,” Van

Ooteghem v. Gray, 628 F.2d 488-492 (5th Cir. 1980).

However, in balancing the interests discussed in Pick-

ering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct.

1731, 1734-35, 20 L.Ed.2d 811 (1968), in order to assess

the protected nature of a given speech, an appellate

court is constrained, absent, clear error, to follow the

trial court’s conclusions. Here, the trial court instructed

the jury:

The evidence in this case has established as a matter

of law the following protected activities: private con-

versations he had with the Principal, the Superin-

tendent, the Trustee members which related to the

conditions of his employment, and remarks that he

made at a faculty meeting on November 18, 1976.

Each of these activities taken individually or col-

lectively are protected First Amendment activities.

Based on the facts of this case, we cannot find that

his conclusions were erroneous.

SUFFICIENCY OF THE EVIDENCE

[3] Concerning the evidentiary burdens of the par-

ties, the rules are simple enough. Under Mt. Healthy

City Board of Education v. Doyle, 429 U.S. 274, 97

S.Ct. 568, 50 L.Ed.2d 471 (1971), the pluintiff, first,

must (i) prove that exercise of a First Amendment

right was a “... substantial ...” or “... motivating

...” factor inducing the supposedly retaliatory acts

complained of, whereupon (ii) the defendants may

prove that they would have taken the same actions

A-5

“ .. even in the absence of the protected conduct.”

429 U.S. 287, 97 S.Ct. 576, 50 L.Ed.2d 484."

In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.

1969) en banc, we established the standards govern-

ing judgments n.0.v.:

On motions for directed verdict and for judgment

notwithstanding the verdict the Court should con-

sider all of the evidence — not just that evidence

which supports the non-mover’s case — but in the

light and with all reasonable inferences most favor-

able to the party opposed to the motion. If the facts

and inferences point so strongly and overwhelmingly

in favor of one party that the Court believes that

reasonable men could not arrive at a contrary ver-

dict, granting of the motions is proper. On the other

hand, if there is substantial evidence opposed to the

motions, that is, evidence of such quality and weight

1. The jury was given specific inst:uctions concerning the

issues presented by Interrogatory One. They were :

“If James Brown’s actions or statements in connection

with his protected First Amendment activities were a

substantial or —— factor in any of the decisions

that Mr. Irby, Mr. Coffey or the B In dent

School District or its individual Trustees made with

reference to his employment, then the Defendants acted

illegally and contrary to the Constitution of the United

States. The burden of proof in this connection is on the

Plaintiff, James Brown, to prove his allegations to you

by a preponderance of the evidence.

“On the other hand, if Mr. — Mr. Coffey, Bullard Inde-

pendent School District or individual Trustees can

establish that the action which they took with reference

to James Brown would have been taken in any event;

that is, even if he had never made those remarks on

November 18, 1976, or had any conversations regerans

~ 4 — with Mr. Irby: then there is no violation

iw.”

A-6

that reasonable and fair-minded men in the exercise

of impartial judgment might reach different conclu-

sions, the motions should be denied, and the case

submitted to the jury.

[4] In response to interrogatories the jury found

that Brown’s non-renewal was in violation of his rights

under the Fifth Amendment; that the school admin-

istrators were not entitled to “good faith” immunity

defense, and that the school board members were not

entitled to a “good faith” immunity defense. There

was conflicting testimony on all of these issues. While

the evidence for defendants was persuasive, the evi-

dence for plaintiff was substantial and also persuasive.

Faced with conflicting credible evidence, it was within

the jury’s province to resolve the conflict in favor of

plaintiff. Denial by the trial court of defendants’ mo-

tion for directed verdict and judgment n.o.v. was not

in error.

PUNITIVE DAMAGES

[5] The Supreme Court noted in Carey v. Piphus,

435 U.S. 247, 257, n.11, 98 S.Ct. 1042, 1049, n.11, 55

L.Ed.2d 252, that punitive damages may be awarded

in appropriate cases under Section 1983. In the present

case the district judge declared that punitive damages

as assessed by the jury were disregarded for the reason

that the evidence was insufficient to support such an

award. The jury, encountered difficulty in agreeing on

the punitive damage interrogatory.

Plaintiff's suit involves no class-wide wrong; there

was no systematic oppression or a continuous course of

harassment. We have again examined the record un Jer

A-7

the Boeing standard, and viewing the evidence and

making reasonable inferences in the light most favor-

able to plaintiff, we conclue that there is simply no

evidence of the type of malevolent, outrageous or abu-

sive conduct which justifies more than compensatory

damages. The district court properly granted the mo-

tion for judgment n.o.v. on the issue of punitive

ATTORNEY’S FEES

[6] Defendant’s requested and were awarded attor-

ney’s fees under 42 U.S.C. § 1988. Section 1988 provides

for attorney’s fees at the Court’s discretion to prevail-

ing parties in suits brought under certain of the civil

rights laws, including 42 U.S.C. § 1983. This circuit has

consistently held that prevailing parties are ordinarily

entitled to attorney’s fees “unless special circumstances

would render such an award unjust.” Criterion Club

of Albany v. Board of Commissions, 594 F.2d 118, 120

(5th Cir. 1979). To deny attorney’s fees in this case

would contravene the very purpose for which section

1988 was designed — to encourage plaintiffs deprived

of constitutional rights to seek redress. Gore v. Turner,

563 F.2d 159, 163 (5th Cir. 1977). The fee awarded was

in the amount of $5,000. Plaintiff insists that it was

inadequate. The district court failed to explain how

it arrived at this figure and made no reference to the

guidelines set forth by this Court in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

Such reasons, whether expressed in the form of an

opinion or findings, are essential for us to adequately

evaluate this issue. Without them the appellate court

is obliged, at least in part, to respond to the appeal on

A-8

the basis of “too little,” “too much,” or just about right.”

Van Ooteghem v. Gray, 628 F.2d 488 (1980).

Finding no error in the proceedings below on the

issues of liability and damages, we AFFIRM those

sections of the judgment. The district court failed to

make adequate findings in fixing the amount of attor-

ney’s fees. We VACATE the award of $5,000 and RE-

MAND for reconsideration of this one issue.

AFFIRMED in part; VACATED and REMAND-

ED in part.

B-1

APPENDIX B

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

NO. 79-3476

JAMEs N. Brown

Pluintiff-Appellee

Cross-Appellant,

vB.

BULLARD INDEPENDENT SCHOOL DISTRICT, ET AL,

Defendants-Appellants

Cross-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

Before AINSWORTH and SAM D. JOHNSON,

Circuit Judges, and HUNTER’, District Judge.

JUDGMENT

This cause canie on to be heard on the transcript

of the record from the United States District Court

for the Eastern District of Texas, and was argued by

counsel,

B-2

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the

same is hereby, affirmed in part; and vacated in part;

and that this cause be, and the same is hereby remand-

ed to the said District Court in accordance with the

opinion of this court; it is further ordered that the

costs are rendered taxed against appellants and ap-

pellee by the Clerk of this Court.

March 25, 1981

Issued as mandate:

° ~ * HUNTER, United States District Judge of the Western

District of Louisiana, sitting by designation.

C-1

APPENDIX C

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

NO. 79-3476

JAMES N. Brown

Plaintiff-Appellee

Cross-Appellant,

vB.

BULLARD INDEPENDENT SCHOOL DIsTRICT, ET AL,

Defendants-Appellants

Cross-A ppellees.

Appeal from the United States District Court

for the Eastern District of Texas

ON PETITION FOR REHEARING

(APRIL 17, 1981)

Before AINSWORTH and SAM D. JOHNSON,

Circuit Judges, and HUNTER,* District Judge.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and number cause be and

the same is hereby denied.

ENTERED FOR THE COURT:

/s/__Rosert A. AINSwoRTH

United States Circuit Judge

_ * Senior District Court Judge from the Western District of

Louisiana, sitting by designation.