Record and brief — Texas Teachers Assn. v. Garland School Dist.

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Text

No. 87-1759-CFX

Status: GRANTED

Docketed:

April 25, 1988

3 May 23 1988

4 Jun 23 1988

5 Jun 28 1988

6 Jul 5 1988

7 Oct 3 1988

8 Oct 21 1988

10 Nov 1 1988

11 Nov 30 19988

12 Nov 30 2988

14 Dec 3 1988

15 Jan 6 1989

16 Jan 17 1989

17 Jan 24 1989

18 Feb 6 1989

19 Feb 21 1989

20 Feb 21 1989

21 Mar 1 1989

Counsel for respondent: Luna, Ear]

Title: Texas State Teachers Association, et al.,

Petitioners

Vv.

Garland Independent School District, et al.

Court: United States Court of Appeals

for the Fifth Circuit

Counsel for petitioner: Chanin,Robert H.

Apr 25 1988 G Petition for writ of certiorari filed.

Order extending time to file response to petition until

June 28, 1988.

Brief of respondents Garland Independent School District, et

al. in opposition filed.

DISTRIBUTED. September 26, 1988

X Reply brief of petitioners Texas State Teachers Assn., et

al. filed.

Petition GRANTED.

CPR RRERE EEE ERE REE EEE EEE EERE EERE EERE EERE EE EERE EES

Record filed.

Certified of original record & proceedings, 6

volumes, received. (BOX).

Order extending time to file brief of petitioner on the

merits until November 30, 1988.

Joint appendix filed. 8

Brief of petitioner Texas State Teachers Assn. filed.

Order extending time to file brief of respondent on the

merits until January 21, 1989.

SET FOR ARGUMENT WEDNESDAY, MARCH 1, 1989. (1ST CASE.)

Brief of respondents Garland Independent School District, et

al. filed.

CIRCULATED.

Motion of Texas Association of School Boards, et al. for

leave to file a brief as amici curiae filed.

Motion of Texas Association of School Boards, et al. for

leave to file a brief as amici curiae GRANTED.

X Reply brief of petitioner Texas State Teachers Assn. filed.

ARGUED

PETITION

FOR WRIT OF

CERTIORARI

FILLED

APR 25 e

— — GERRI =

IN THE

Supreme Court of the United States

OcTOBER TERM, 1987

87 - 1 759 A

TEXAS STATE TEACHERS ASSOCIATION,

GARLAND EDUCATION ASSOCIATION,

Joe ATKINS and JANICE HILL,

Petitioners,

GARLAND INDEPENDENT ScHooL District, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Rospert H. CHANIN *

JEREMIAH A. COLLINS

BrReDHOFF & KAISER

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

DANIEL A. ORTIZ

721 W. Abram

Arlington, Texas 76013

Counsel for Petitioners

* Counsel of Record

Wen - Eras Priwrine Co., Inc. - 789-0096 - WasnineTon, 0.C. 20001

0. =

(i)

thereof. to wit, Harris Hill, Donald — Guan Cc

well. Jim Burns, Mike Cloud, Don Hollenshead, and M. D.

Williams IV.

TABLE OF CONTENTS

QUESTION PRESENTED PB

PARTIES TO THE PROCEEDINGS BELOW W

TABLE OF AUTHORTrIEB8

——— ß ũꝶ/ dt wm 3333

—— l —

REASONS FOR GRANTING THE WR

I. THIS CASE PRESENTS AN ACKNOWL-

EDGED CIRCUIT CONFLICT ON A QUES-

TION OF SUBSTANTIAL PUBLIC IMPOR-

EE —

II. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S DECISION IN HENSLEY v.

EEE

III. THE DECISION BELOW IS CONTRARY TO

CONGRESSIONAL INTENT AND SOUND

JUDICIAL ADMINISTRATION

CONCLUSION

(iii)

TABLE OF CONTENTS—Continued

DN og | | > Eee

Opinions Below

Appendix A—Opinion of the Court of Appeals

dated February 8, 1988, 837 F.2d 190

Appendix B—Memorandum Opi ion and Order of

the District Court dated March 3, 19877

Prior Opinions and Orders

Appendix C—Opinion of the Court of Appeals

dated December 6, 1985, 777 F.2d 1043949.

Appendix D—Order of Summary Affirmance dated

October 6, 1986, —— U.S. ——, 107 S. Ct. 41

Appendix E—Memorandum Opinion and Order of

the District Court dated August 24, 1984

Judgment Sought to be Reviewed

Appendix F—Judgment of the Court of Appeals

4 d

16a

21a

— ——ͥ ͤ — .

„ —— KU—U— 4s —[T— , . — —

2 — öüU eee

TABLE OF AUTHORITIES

Cases Page

Abraham v. Pakarski, 728 F.2d 167 (3d Cir.),

cert. denied, 467 U.S. 1242 (1983a))))) 9

Austin v. Department of Commerce, 742 F.2d

RB ES 9

Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979) 9

Bonner v. City of Prichard, 661 F.2d 1206 (11th

, .. ee a eae 8

Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978) 1

Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert.

denied, 454 U.S. 897 (19817) 9, 12

City of Riverside v. Rivera, 477 U.S. 561, 106

SG GG ee 10, 11, 15

Fast v. School Dist. of City of Ladue, 728 F.2d

1030 (8th Cir. 1984) (en bane) 2000. 9,13

Garland Independent School District v. Teras

State Teachers Association, —— U.S. ——, 107

SF . 6, 17

Gingras v. Lloyd, 740 F.2d 210 (2d Cir. 1984). 9, 13

Hanrahan v. Hampton, 446 U.S. 754 (1980) 14

Hensley v. Eckerhart, 461 U.S. 424 (1983 passim

In re Kansas Congressional Dists. Reapportion-

ment Cases, 745 F.2d 610 (10th Cir. 1984) 9,13

Institutionalized Juveniles v. Secretary of Public

Welfare, 758 F.2d 897 (3d Cir. 1985) 9,13

Kreimes v. Department of Treasury, 764 F.2d

I, I ! 9

Lummi Indian Tribe v. Oltman, 720 F.2d 1124

r Oe Aine ane a 9,13

Martin v. Heckler, 773 F.2d 1145 (11th Cir.

11 8

Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983) 9

NAACP v. Wilmington Medical Center, Inc., 689

F.2d 1161 (3d Cir. 1982), cert. denied, 460 U.S.

a ee ey ne a 9

Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir.

Ee — ——— passim

Sethy v. Alameda County Water Dist., 602 F.2d

894 (CA 9 1979) (per curiam)

TABLE OF AUTHORITIES—Continued

Page

Simien v. City of San Antonio, 809 F.2d 255 (5th

GD —, . 7 7

Taylor v. Sterrett, 640 F.2d 663, (5th Cir. 1981) 12

Texas State Teachers Association v. Garland In-

dependent School District, 777 F.2d 1046 (5th

Cir. 1985), aff'd mem., —— US. ——, 107

SS FF Fe Senne 4,5

Uviedo v. Steves Sash & Door Co., 760 F.2d 87

(Sth Cir. 1985), cert. denied, 474 U.S. 1054

— . . 10, 17

Statutes

Civil Rights Act of 1964, Title VI, 42 U.S.C.

IK ——— 2, 8

Civil Rights Act of 1964, Title VII, § 706 (K), 42

a RS ee x

Civil Rights Attorney’s Fees Awards Act, 42

A ⏑—˙·».— C passim

Education Amendments of 1972, Title IX, 20

i —, 2,8

8 eee 2

r .. ...... 2,8

r . ˙—˙— —%L— eee 2,8

T 2, 5, 8

| REITER een a eee 2,8

AS ˙ A Si eA oe aN 2,8

Legislative History

H.R. Rep. No. 94-1558 (19765 — 11

S. Rep. No. 94-1011 (1976) 11,14

Miscelianeous

M. Derfner and A. Wolf, Court Awarded Attor-

CD ee a eee oem 9, 15

M. Schwartz and J. Kirklin, Section 1983 Litiga-

tion: Claims, Defenses and Fees (1985). 9, 17, 18, 19

Director of the Administrative Office of the U.S.

Courts, Annual Report for the Twelve Month

Period Ended June 30, 1977 11

—— x —U U U- ů ↄ [2 — eee

—— — — a ee

In THE

Supreme Court of the United States

OcTOBER TERM, 1987

No.

TEXAS STATE TEACHERS ASSOCIATION,

GARLAND EDUCATION ASSOCIATION,

Joe ATKINS and JANICE HILL,

Petitioners,

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Texas State Teachers Association, Garland Education

Association, Joe Atkins and Janice Hill petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit in this

case.

OPINIONS BELOW

The opinion of the Court of Appeals of which review

is sought, which affirmed the district court’s decision

denying attorney’s fees, is reported at 837 F.2d 190 and

is reproduced in the Appendix at App. la-15a. The opin-

ion of the district court with respect to the application

for attorney’s fees is unreported and is reproduced at

The judgment of the Court of Appeals was entered on

February 8, 1988 (App. 6la). This Court has juris-

diction under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The Civil Rights Attorney’s Fees Awards Act, 42

U.S.C. § 1988, provides in pertinent part as follows:

In any action or pr eeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this

title, title IX of Public Law 92-318, or title VI of

the Civil Rights Act of 1964, the court, in its discre-

tion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of

the costs.

STATEMENT OF THE CASE

Introduction

This case involves a policy adopted by respondent school

district which, inter alia, prohibited private conversations

between teachers regarding employee organizations at

any time during the school day (even during lunch and

other non-class time), and teacher use of a school’s in-

ternal mail system and bulletin boards for communica-

tions regarding this subject ‘even though teachers were

allowed to use these facilities for communications regard-

ing any other subject). Petitioners succeeded in having

these prohibitions declared unconstitutional as a violation

of their First and Fourteenth Amendment rights.

‘

1111

Respondent Garland Independent School District

(“GISD”), a public school district in Texas, adopted a

policy, principally expressed in its Administrative Regu-

lation 412 (“Regulation”), designed to prohibit commu-

nications by or with teachers during the school day con-

cerning employee organizations.

“GISD policy, as expressed in Administrative Regula-

tion 412, affeet ed] two different classes of communica-

The term “employee organization” was defined to include any

organization whose main purpose was to represent a group of em-

ployees in matters of employment practices and procedures.

tions: (1) communications instigated by outside repre-

sentatives of [employee organizations] who desire access

to teachers and school communication facilities; and (2)

communications among GISD teachers employed by the

schools.” Texas State Teachers Association v. Garland

Independent School District, 777 F.2d 1046, 1050 (5th

Cir. 1985), aff'd mem., —— US. ——, 107 S. Ct. 41

(1986) (“Garland I”) (App. 262).

As applied to outside representatives, GISD’s policy

prohibited them from having access to school grounds

during school hours, and from using school communica-

tions facilities for the dissemination of information con-

cerning employee organizations. Id. at 1048-49 (App.

22a-24a). As applied to GISD’s own teachers, it was ac-

knowledged that the policy prohibited a teacher from

discussing employee organizations “if, in [the school offi-

cials’] view, such discussion amounted to ‘promoting’ the

organization,” id. at 1054 (App. 34a); and as the Court

of Appeals observed, the prohibition in fact extended

even further: “[t]he evidence indicates that school off

cials interpret Admin. Reg. 412 as prohibiting any dis-

cussions among teachers relating to . . any teacher or-

ganization that occur on school premises during school

hours, even though those discussions occur during lunch

hour or other non-class time.” Id. at 1053 (App. 32a)

(emphasis by the court). GISD’s policy also prohibited

teachers from using the internal mail system and bulletin

boards to communicate regarding employee organiza-

tions: “GISD allowed] teachers to [use these facilities

to communicate with each other on any subject, including

purely personal matters, except for subjects relating to

employee organizations.” Id. at 1055 (App. 37a).

GISD’s ban on speech concerning employee organiza-

tions, as applied both to outside representatives and to

GISD teachers, was challenged by the petitioners: Texas

State Teachers Association (“TSTA”), a voluntary mem-

bership organization that is classified as an “employee

organization” for purposes of GISD’s policy; Garland

—

— — ——ę-

6— — — *

Education Association (“GEA”), one of TSTA’s local

affiliates, which is also considered an “employee organiza-

tion”;* Joe Atkins, an employee of TSTA; and Janice

Hill, a GiISD teacher who is a member of TSTA and

president of GEA. Their complaint, filed under 42 U.S.C.

§ 1983 against GISD, the members of GISD’s Board of

Trustees, and its Superintendent, alleged that the Regula-

tion violated the First and Fourteenth Amendments.

The District Court granted summary judgment for

respondents (App. 40a-60a), upholding the Regulation ex-

cept in one respect not pertinent here (App. 58a). On

appeal, the Fifth Circuit affirmed the District Court’s

decision as it pertained to outside representatives of em-

ployee organizations, 777 F.2d at 1050-53 (App. 27a-31a) ;

but the court reverse ld] that part of the summary judg-

ment which uph feld]! Administrative Regulation 412’s

application to private teacher conversations and use of

school media facilities by teachers employed in GISD

schools. 777 F.2d at 1055-56 (App. 38a). The

court grant ed] [petitioners’] motion for partial sum-

mary judgment holding the application of the Regulation

4 — activities unconstitutional.” Id. at 1056 (App.

This outcome represented a clear and significant de-

feat for GISD. In its brief to the Fifth Circuit, GISD

had emphatically urged the Court of Appeals to uphold

the Regulation nct only as applied to outside representa-

tives, but as applied to the teachers as well, asserting that

if the Regulation were sustained with respect to the

2TSTA and GEA sued on their own behalf and on behalf of

their members.

every possible step to overturn the decision. They filed

a Petition for Rehearing and a Suggestion for Rehearing

En Banc; and when the Petition and Suggestion were

denied, 784 F.2d 1113 (5th Cir. 1986) respondents

filed in the Court of Appeals a Motion for Stay of En-

forcement and/or Recall of Mandate, asserting that

the failure to grant this motion would require the

changing of policies and procedures and training sessions

for employees on approximately fifty (50) campuses.”

Motion for Stay of Enforcement and/or Recall of Man-

date at 2, Garland |, supra. Petitioners filed an opposi-

tion to that motion, and the Court of Appeals denied the

motion by order entered March 26, 1986. Respondents

thereupon filed a motion in this Court for a stay, which

was denied per order of Justice White. Respondents ap-

pealed the Fifth Cireuit's judgment to this Court, and

petitioners filed a Motion to Dismiss or Affirm. On Oc-

tober 6, 1986, this Court summarily affirmed the Court

of Appeals’ judgment, —— U.S. ——, 107 S. Ct. 41

(App. 39a), thus finally putting an end to GISD’s

vigorous efforts to overturn that judgment.

Petitioners then moved in the District Court for an

award of attorney's fees pursuant to 42 U.S.C. § 1988.

The District Court denied the fee request in its entirety,

holding that although plaintiffs had achieved “partial

success,” they had not prevailed on “the central issue”

in the litigation (App. 16a-20a). That issue, according to

the District Court, was the constitutionality of the Regu-

lation as applied to outside representatives of employee

organizations.

A divided panel of the Court of Appeals affirmed the

denial of fees. Acknowledging that other courts have

defined “prevailing parties“ as those who “succeed on

any significant issue in litigation which achieves some of

the benefit the parties sought in bringing suit,” 837 F.2d

at 192 (App. 5a), quoting Hensley v. Eckerhart, 461

U.S. 424, 433 (1983), the Court of Appeals declared that

“lolur definition is narrower... . We have held that

the test for ‘prevailing party’ status as it applies to

plaintiffs is ‘whether the plaintiff prevailed on the central

issue by acquiring the primary relief sought. 837 F.2d

pp. 5a), quoting Simien v. City of San Antonio,

255, 258 (5th Cir. 1987). The court affirmed

ees

did not

Judge Goldberg dissented, stating that “[b]y adhering

to the law of this Circuit, the majority persists in an

approach to the prevailing party standard that has been

rejected by all but one of the other circuits, flies in the

face of Supreme Court precedent and is inconsistent with

the legislative purpose in enacting § 1988.” Jd. at 193

(App. 7a). Judge Goldberg concluded, id. at 197 (App.

15a):

I profoundly hope that the Court will grant

certiorari in this case [and] resolve this split in

circuits in favor of the generous formulation en-

dorsed in Hensley.

REASONS FOR GRANTING THE WRIT

I. THIS CASE PRESENTS AN ACKNOWLEDGED

CIRCUIT CONFLICT ON A QUESTION OF SUB-

STANTIAL PUBLIC IMPORTANCE.

The decision in this case is squarely in conflict with

the decisions of other circuits regarding the standard a

plaintiff must satisfy to qualify as a “prevailing party”

eligible for an award of attorney's fees under the Federal

civil rights laws.“

cuit—the Eleventh— follows the “central issue” test ap-

plied by the Fifth Cireuit.“ The other eleven circuits have

all adopted a more generous formulation, initially artie-

ulated by the First Circuit in Nadeau v. Helgemoe, 581

F.2d 275, 278-79 (ist Cir. 1978), under which plaintiffs

qualify as prevailing parties “if they succeed on any

significant issue in the litigation which achieves some of

the benefit the parties sought in bringing suit.”

This case arises under 42 U.S.C. § 1988, which by its

governs fee awards under 42 U.S.C. §§ 1981, 1982, 1983, 1

1986, as well as under title IX of the

1972, 20 U.S.C. § 1681, et seq., and title VI of the Civil

of 1964, 42 U.S.C. § 2000d et seq. A construction of the

vailing party” under § 1988 would

to the fee provision of title VII of

5(k), see Hensley v. Eckerhart, 461

1 2

1981) (en bane).

Miller v. Staats, 706 F.2d 336, 340-41 (D.C. Cir. 1983) ;

Gingras v. Lloyd, 740 F.2d 210, 212 (2d Cir. 1984);

Abraham v. Pakarski, 728 F.2d 167, 175 (3d Cir.), cert.

denied, 467 U.S. 1242 (1984); Bonnes v. Long, 599 F.2d

1316, 1318 (4th Cir. 1979); Kreimes v. Department of

Treasury, 764 F.2d 1186, 1188-90 (6th Cir. 1985);

Busche v. Burkee, 649 F.2d 509, 521 (7th Cir.), cert.

denied, 454 U.S. 897 (1981); Fast v. School Dist. of City

of Ladue, 728 F.2d 1030, 1032 (8th Cir. 1984) (en

banc); Lummi Indian Tribe v. Oltman, 720 F.2d 1124,

1125 (9th Cir. 1983); Jn re Kansas Congressional Dists.

Reapportionment Cases, 745 F.2d 610, 612 (10th Cir.

1984); Austin v. Department of Commerce, 742 F.2d

1417, 1419 Fed. Cir. 1984).°

PEPER EET

1 0

| 1

a tale

;

[

;

its

in the other circuits has been by the commentators. See

M. Schwartz and J. Kirklin, Section 1983 Litigation: Claims,

Defenses and Fees 340-41 (1985) (“Schwartz and Kirklin”)

M Derfner and A. Wolf, Court Awarded Attorney Fees £8.08 at

8-19 (1988) (“Derfner and Wolf”)

Under the definition applied in every circuit but the

Fifth and Eleventh, petitioners would unquestionably

have been held to be prevailing parties in thi ;

it is. if anything, an understatement to

the Court of Appeals did, that petitioners

on significant secondary issues” in this li

F.2d at 193 App. 6a), quoted at p. 7 supra.

petitioners’ success was so substantial as to

appeal by respondents to this Court, not to

stay motions and a petition for rehearing, in

spondents failed in their attempts to

ers’ victory. See p. 6 supra. Only in the Fifth and

enth Circuits could a civil rights plaintiff who

There is no prospect that the Fifth Circuit will mod

ify its views of its own accord to conform with the law

applied in the other circuits on this

Goldberg observed in his dissent, 837 F.2d at 195

resolve this split in circuits.

B. Nor can there be any doubt that this circuit conflict

concerns an issue of great public importance. “ “Congress

expressly recognized that a plaintiff who obtains re

lief in a civil rights lawsuit “dees so not for himself

alone but also as a private attorney general,’ vindicating

the

Ct. 2686, 2695 (1986) (plurality opinion), quoting

R. Rep. No. 94-1558, p. 2 (1976). And, Congress has

determined that “fee awards have proved an essential

remedy if private citizens are to have a meaningful op-

portunity to vindicate the important Congressional poli-

cies which these laws contain.” City of Riverside, supra,

106 S. Ct. at 2696 (plurality opinion), quoting S. Rep.

No. 94-1011, p. 2 (1976).

It is therefore imperative that the circuits follow a

correct and consistent approach in determining when at-

torney’s fees will be available to civil rights plaintiffs.

But as matters now stand, two circuits, which entertain

more than 20% of the civil rights cases filed in the fed-

eral eourts,“ apply a much more restrictive test than is

by the other eleven circuits; and this Court may

take judicial notice that civil rights litigation in the Fifth

and Eleventh Circuits includes many ongoing institu-

tional cases such as school desegregation cases, where, as

Judge Goldberg pointed out, 837 F.2d at 196 (App. 13a-

14a), the narrow central-issue test has its most onerous

Thus, the circuit conflict presented here involves a re-

curring issue of exceptional importance, and should not

be left unresolved.

* See the Annual Report of the Director of the Administrative

of the U.S. Courts for the Twelve Month Period Ended

June 30, 1987, Appendix I, Table C3A, pp. 28-31, which shows that

of the civil rights cases pending in the district courts as of June 30,

1987 (including both “United States cases” and “private cases“)

21% were pending in the Fifth and Eleventh Circuits.

7 There are

civil rights cases pending in the federal

district courts. See the tables cited in n.6 supra. The need to

a “prevailing party” arises in

cases, and in cases under other statutes as well.

II. THE DECISION BELOW CONFLICTS WITH THIS

COURT’S DECISION IN HENSLEY v. ECKERHART.

The basic subject involved in this case—the analysis

that should be applied to a request for attorney’s fees

when the plaintiff has been successful on certain issues

in the litigation but has been unsuccessful on others—

was addressed by this Court in Hensley v. Eckerhart,

461 U.S. 424 (1983). The central-issue test adopted by

the Fifth and Eleventh Circuits conflicts with this Court’s

teaching in that case.

At the outset of its opinion, the Hensley Court quoted

with evident approval the definition of “prevailing party”

articulated in Nadeau v. Helgemoe, supra. The Court

stated, 461 U.S. at 433:

A plaintiff must be a “prevailing party” to recover

an attorney's fee under § 1988.'") The standard for

making this threshold determination has been framed

in various ways. A typical formulation is that “plain-

tiffs may be considered ‘prevailing parties’ for attor-

ney’s fees purposes if they succeed on any significant

issue in litigation which achieves some of the benefit

the parties sought in bringing suit.” Nadeau v.

Helgemoe, 581 F.2d 275, 278-279 (CA 1 1978).'*!

This is a generous formulation that brings the plain-

tiff only across the statutory threshold. It remains

for the district court to determine what fee is “rea-

sonable.”

See also Busche v. Burkee, 649 F.2d 509, 521

(CA7 1981), cert. denied, 454 U.S. 897 (1981);

Sethy v. Alameda County Water Dist., 602 F.2d

894, 897-898 (CA9 1979) (per curiam). Cf.

Taylor v. Sterrett, 640 F.2d 663, 669 (CA5

1981) (The proper focus is whether the

plaintiff has been successful on the central! issue

as exhibited by the fact that he has acquired

the primary relief sought“).

Several circuits have understood this passage to indi-

cate this Court’s adoption of the Nadeau test.* The Fifth

Cireuit, on the other hand, stated in its decision here

that [iln Hensley, the Supreme Court merely accepted

the ‘generous formulation’ of the ‘prevailing party’ defi-

nition found in some of the circuits but did not hold it

to be the only correct definition.” 837 F.2d at 192 (App.

5a-6a).

Whether or not the passage from Hensley quoted above,

with its “ef.” citation to a Fifth Cireuit decision articu-

lating the central-issue test, may fairly be subject to

conflicting interpretations,’ for the reasons that follow

we submit that the thrust of the Court’s analysis in

Hensley cannot in any event be reconciled with the

central-issue test adopted by the Fifth and Eleventh

Circuits.

In Hensley the Court stated that the “prevailing party”

requirement is intended to be a “generous” one which

“brings the plaintiff only across the statutory threshold,”

461 U.S. at 433; and the Court noted that a plaintiff

may [be] deemed ‘prevailing’ even though he succeeded

on only some of his claims for relief.” Jd. at 434. In-

deed, Hensley explicitly contemplates that plaintiffs who

® See Fast v. School Dist. of City of Ladue, supra, 728 F.2d at

1032 and n.2; Gingras v. Lloyd, supra, 740 F.2d at 212; Lummi

Indian Tribe v. Oltman, supra, 720 F.2d at 1125; In re Kansas

Congressional Dists. Reapportionment Cases, supra, 745 F.2d at

612. The Third Circuit, while stating that “the Supreme Court

did not prescribe one uniform articulation of the prevailing party

standard in Hensley,” has held that Hensley requires the rejection

of any standard that is “patently inconsistent with the Court's typi-

cal’ formulation [i.e., the Nadeau test] Institutionalized Juveniles

v. Secretary of Public Welfare, 758 F.2d 897, 911 (3d Cir. 1985).

o The opinion of Justice Brennan, joined by Justices Marshall,

Blackmun and Stevens, concurring in part and dissenting in part in

Hensley, appears to characterize the majority’s quotation of the

Nadeau standard as part of the holding in the case. See 461 U.S.

et 441.

have achieved “only partial or limited success” will re-

cover attorney’s fees. Id. at 436. As an illustration of

this point the Court explained that such a situation would

have been presented had the Hensley plaintiffs “prevailed

on only one of their six general claims, for example the

claim that petitioners’ visitation, mail, and telephone pol-

icies were overly restrictive... .” Jd. Significantly, the

claim to which the Court referred was a relatively minor

aspect of the Hensley litigation (see id. at 427, n. 1),

and certainly could not be said to constitute the “central

issue” in the case; yet this Court made it clear that even

if the plaintiffs had prevailed on only that single claim

they would have been eligible for an award of attorney’s

fees (albeit at a level that did not include payment for

every hour spent on the litigation) .”

Under Hensley, the extent of the “results obtained,”

id. at 434, does not affect the “generous . . . threshold

test],“ id. at 433, of eligibility for an award of attor-

ney's fees, but is rather [one of the] considerations that

may lead the district court to adjust the fee upward or

Similarly, this Court’s discussion in Hensley of the Eighth

Circuit’s decision in Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978),

clearly indicates that the plaintiff in Brown was entitled to a fee

award even though she “had lost on the major issue” and had

“obtained only a minor part of the relief she sought.” See 461 U.S.

at 438-439, n.14. And, in Hanrahan v. Hampton, 446 U.S. 754

(1980), the Court, in holding that attorney’s fees under § 1988 may

be awarded pendente lite, quoted legislative history stating that

such fees are “especially appropriate where a party has prevailed

on an important matter in the course of litigation, even when he

ultimately does not prevail on all issues.” Id. at 757, quoting S. Rep.

No. 94-1011, p. 5 (1976) (emphasis added). If it is “especially

appropriate” for a plaintiff to receive fees pendente lite for having

prevailed on any “important matter,” surely a plaintiff who has

received a final judgment in his favor on such a matter cannot be

disqualified from a fee award merely because the “important mat-

ter” on which he prevailed was not “the central issue” in the

litigation.

downward... .” Id. at 434." As Judge Goldberg put it

in his dissent, 837 F.2d at 193 (App. 8a), “[u)nder

Hensley the degree of success goes to the amount of an

award, not to the propriety of that award.“

We therefore submit that the “central issue” test can-

not be reconciled with this Court’s analysis in Hensley.

This consideration buttresses the need for a grant of

certiorari to resolve the circuit conflict presented by this

case.

III. THE DECISION BELOW IS CONTRARY TO CON-

GRESSIONAL INTENT AND SOUND JUDICIAL

ADMINISTRATION.

As previously indicated, Congress’ purpose in enacting

the Civil Rights Attorney’s Fees Awards Act was to en-

able plaintiffs to recover fees when they have succeeded,

as “private attorneys general,” in enforcing the civil

rights laws, thus “vindicating a policy that Congress con-

sidered of the highest importance.” City of Riverside v.

Rivera, supra, 106 S. Ct. at 2695 (plurality opinion)

(quoting legislative history). See pp. 10-11 supra. There

can be no dispute that petitioners accomplished precisely

that in this litigation: they succeeded in demonstrating

that respondents’ policy, as applied to GISD teachers, vio-

11 The Court explained in Hensley that where a

achieved only partial success, the amount of the fee may be ad-

justed to reflect that fact, depending on the answers to two

tions. “First, did the plaintiff fail to prevail on claims that were

unrelated to the claims on which he succeeded? Second, did the

plaintiff achieve a level of success that makes the hours reasonably

expended a satisfactory basis for making a fee award?” Id. See

also id. at 440 (summarizing the holding on these points).

12 See also Derfner and Wolf, supra, 18.03 at 8-19 (Hensley

“spelled out strict computation rules which [the Court] found nec-

essary because of the ease with which one could become a prevailing

party under [the Nadeau definition applied by the Court)”).

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but

who is making the presentation.” Brief Opposing Motion to Dismiss

or Affirm at 5, Garland Independent School District v. Teras State

Teachers Ass'n, 107 8. Ct. 41 (1986). Respondents characterized

this as an aspect of “the school district's right to curtail employee

For example, in this case, the courts below concluded

that the litigation involved two issues, one concerning

of rehearing en banc). The litigation of that issue

complicated enough in this case, where the District

attempted to divine the central issue by look ing

the number of lines in the complaint and the

time spent at trial proving the various issues,”

at 194 (App. 9a) (Goldberg, J., dissenting). It

even more complicated in cases where the parties

affidavits and other evidentiary materials in an

to establish which issue was “the central [one].” ™

thing is clear: in whatever manner the parties choose

proceed, the requirement of determining the “central

sue” can only undermine compliance with this Court’

admonition that [a] request for attorney’s fees should

organization activities during school hours”—a right which re-

spondents viewed as equally applicable to speech by outside repre-

sentatives and speech by GISD teachers. /d. at 4.

1% Judge Goldberg elaborated on this point in his dissent here,

837 F.2d at 196 (App. l4a-1l5a):

The approach followed in [the Fifth] Circuit enhances the

likelihood of protracted litigation over attorneys’ fees. The

central issue approach requires a judicial assessment of plain-

tiff’s goals. Such an inquiry is problematic. During the course

of the litigation goals inevitably shift. As here, an issue of

only minor importance in the original complaint rose to suffi-

cient significance to inspire an appeal all the way to the

Supreme Court. The approach followed in this Circuit forces

the trial court to evaluate the post hoc recharacterization of

the lawsuit to determine the central issue ex ante. This

inquirv is inherently artificial, complex and time consuming.

15 The central-issue test invites such submissions because, as this

case illustrates (pp. 16-17 supra), a party can never be sure that the

courts parsing of the complaint and its assessment of the time

devoted to various issues in the litigation will result in an accurate

assessment of the importance and interrelationship of the various

issues. What is more, although for simplicity we have referred to

the Fifth Circuit’s approach as a “central issue” test, “[a)pplica-

tion of the central issue standard is further complicated by its dual

requirements that the prevailing plaintiff both succeed on the cen-

tral issue ip the litigation and obtain the primary relief sought.”

Schwartz and Kirklin, supra at 349-50 (emphasis added).

5 2

def krzas

[ITibe complexities and difficulties inherent in the

central issue test are fundamentally at odds with the

Se 1 HH

Supreme Court's recent fee The uncer-

matt ty yt 1 yy

parties to te prevai party issue ra

than settling the fee issue in accord with the clear

preference of the Supreme Court. On all counts,

there is little to command continued adherence to the

central issue test for deciding the prevailing party

Schwartz and Kirklin, supra at 351.

For these reasons, as well as the conflict in the circuits

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 87-1221

Texas STATE TEACHERS ASSOCIATION, et al.,

Plaintiffs-Appellants,

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-A ppellees.

Feb. 8, 1988

Appeal from the United States District Court

for the Northern District of Texas

Before GOLDBERG, WILLIAMS and HIGGINBOTHAM, Cir-

cuit Judges.

Jerre S. WILLIAMS, Circuit Judge:

This proceeding challenges the district court’s denial

of a motion for an attorney’s fees award in a case in

which the appellants had partial success on a 42 U.S.C.

§ 1983 claim. We agree with the district court that the

appellants were not “prevailing parties” and therefore

are not eligible for an award of attorney's fees under

42 U.S.C. § 1988, and we affirm.

I. Factual Background And Prior Proceedings

The Texas State Teachers Association (TSTA), the

Garland Education Association (GEA), and several in-

dividuals belonging to or employed by these organizations

filed a 42 U.S.C. § 1983 suit in federal court on March

13, 1981, challenging a regulation of the Garland Inde-

pendent School District (GISD). This regulation, GISD

Administrative Regulation 412, was construed by

administrators and by this Court to prohibit

171

teacher use of a school’s internal mail system and

tin boards for this subject. Texas State Teachers

v. Garland Independent School District, 777 F.2d 1

(5th Cir. 1985).

The challenge to Regulation 412 apparently arose

nine TSTA representatives visited several GISD

during school hours in January 1981, and

permission by school administrators to

literature or to meet with teachers or TSTA

resentatives. In their suit, appellants

tion violated their free speech and free

under the First Amendment and violated the Equal

the F

actual, and exemplary damages, injunctive relief, and

declaratory relief under 42 U.S.C. § 1983.

any

main purpose is to represent a group of employees in matters of

employment practices and procedures. TSTA and GEA are such

organizations.

Both sides filed cross motions for summary judgment.

The district court granted GISD’s motion for summary

judgment and denied appellants summary judgment mo-

tion with two exceptions not at issue before us.“ The dis-

trict court’s opinion focused on the application of Regu-

lation 412 in preventing outside representatives of em-

ployee organizations from recruiting, organizing, or meet-

ing with GISD teachers on GISD campuses during school

hours and in denying them access to GISD schools’ in-

ternal mail systems, teacher mailboxes, bulletin boards,

and public address systems. The district court held

that this application of Regulation 412 did not violate

appellants’ constitutional rights to free speech, free as-

sociation, or equal protection. The district court found

no merit in appellants’ due process challenge.

The court’s discussion of Regulation 412’s application

to conversations among GISD teachers regarding em-

ployee organizations consisted of a single footnote. In

that footnote the district court held that prohibiting

teachers from discussing employee organization busi-

ness among themselves during non-class time would be

unconstitutional, but the court noted that there had not

been any attempt to enforce such an interpretation of

the regulation. The court held, however, that Regula-

tion 412 could be used to prohibit teachers from pro-

moting an employee organization or working for such

an organization during the school day but during off-

duty hours of teachers.

On appeal, this Court agreed with the district court

that Regulation 412 was constitutional as it applied to

2 These two exceptions involved provisions in Regulation 412

which required the approval of a school principal before an employee

organization could use school premises for meetings during non-

school hours. The district court held that these provisions were

unconstitutionally overbroad. The court noted that these two pro-

visions were of minor significance and did not affect the constitu-

tionality of the remainder of the regulation. This holding was not

appealed.

outside representatives of employee organizations by pre-

venting their access to GISD campuses and employees

during school hours and preventing their use of school

communication facilities. 777 F.2d at 1050-53. We held,

however, that Regulation 412 was unconstitutional as it

applied to prohibit “any discussions among teachers re-

lating to TSTA or TSTA business or relating to any

teacher organization that occur on school premises dur-

ing school hours, even though those discussions occur

during lunch hour or other non-class time.” 777 F.2d

at 1053. (emphasis in original). We disagreed with the

district court’s holding that this issue was not properly

before the court. We held that conversations about em-

ployee organizations between GISD teachers during non-

class times during the school day could not be prohibited

since there was no showing “that such conversations re-

sult in a ‘material and substantial interference with the

activities or discipline of the school.’” 777 F.2d at 1055.

We also struck down the regulation’s ban on the use

of school internal mail facilities and bulletin boards by

GISD teachers to transmit messages relating to employee

organizations.

GISD filed a petition for rehearing before this Court,

and a suggestion for rehearing en banc, contesting this

Court’s invalidation of Regulation 412 as it applied to

teacher-teacher communication. These petitions were de-

ni d by the court. GISD filed a Motion for Stay of En-

forcement and/or Recall of Mandate which we also de-

nied. GISD appealed our decision to the Supreme Court

and filed an Application For Stay of Enforcement pend-

ing appeal with the Supreme Court which that Court

denied. The Supreme Court summarily affirmed our

judgment, —— U.S. ——, 107 S.Ct. 41, 93 L.Ed.2d 4

(1986).

Appellants subsequently moved the district court for

an award of attorney’s fees pursuant to 42 U.S.C. § 1988.

The district court denied the request for attorney’s fees,

holding that although the appellants had achieved “par-

tial suecess” in their suit against GISD, they did not pre-

vail on the “central issue” which was GISD’s policy lim-

iting communications and access between employee or-

ganizations and GISD teachers. TSTA and the various

appellants appeal this holding.

II. Attorney's Fees Under 42 U.S.C. § 1988

In pertinent part, 42 U.S.C. § 1988 reads: “In any

action or proceeding to enforce a provision of sections

1981, 1982, 1983, 1985, and 1986 of this title, . the

court, in its discretion, may allow the prevailing party,

other than the United States, a reasonble attorney’s fee

as part of the costs.” (emphasis added). The term “pre-

vailing party” is not defined by the statute, but has been

judicially defined by the courts. We have held that the

test for “prevailing party” status as it applies to plain-

tiffs is “whether the plaintiff prevailed on the central

issue by acquiring the primary relief sought.” Simien

v. City of San Antonio, 809 F.2d 255, 258 (5th Cir.

1987). See also Commonwealth Oil Refining Co., Inc. v.

Equal Employment Opportunity Commission, 720 F.2d

1383, 1385 (5th Cir. 1983); Taylor v. Sterrett, 640 F.2d

663, 669 (5th Cir.1981); Jranian Students Association

v. Edwards, 604 F.2d 352, 353 (5th Cir. 1979).

Our definition of “prevailing party” is narrower than

that of some of the other Federal appellate courts. “Pre-

vailing parties” for § 1988 attorney’s fees purposes has

also been defined as parties who “ ‘succeed on any signifi-

cant issue in litigation which achieves some of the benefit

the parties sought in bringing suit.“ Hensley v. Ecker-

hart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d

40 (1983), quoting Nadeau v. Helgemoe, 581 F.2d 275,

278-9 (lst Cir.1978). In Hensley, the Supreme Court

merely accepted the “generous formulation” of the “pre-

vailing party” definition found in some of the circuits

but did not hold it to be the only correct definition. See

461 U.S. at 433 n. 8, 103 S. Ct. at 1939 n. 8.

Clearly the “prevailing party” issue is a threshold in-

quiry to be made by a district court prior to the exer-

cise of its discretion in deciding whether to award at-

torney’s fees under § 1988. If plaintiffs are not the

“prevailing parties” under § 1988, then they are not

even eligible for an attorney’s fees award.“

Applying this Court's definition of “prevailing party”

to the facts of this case, we agree with the conclusion

of the district court that appellants did not succeed on

the central issue of their suit and did not obtain the

primary relief sought. The main thrust of this lawsuit

was appellants’ attempt to open up GISD school cam-

puses during school hours to outside representatives of

employee organizations like TSTA and GEA and to allow

such organizations the use of school communication fa-

cilities. Appellants failed in this attempt, and this was

the primary relief sought in this lawsuit. Granted, ap-

pellants did succeed on significant secondary issues by

having Regulation 412 declared unconstitutional as it

applied to teacher to teacher conversation and teacher

use of school communication systems. But this was not

the primary relief sought. The central issue in this case

was employee organization access to GISD campuses, not

internal teacher communication within those campuses.

It should be noted that once a plaintiff is determined to be the

“prevailing party” in an action subject to 42 U.S.C. § 1988, the

plaintiff “should ordinarily recover an attorney’s fee unless special

circumstances would render such an award unjust.” Hensley v.

Eckerhart, 461 U.S. at 429, 103 S.Ct. at 1937; Taylor v. Sterrett,

640 F.2d at 668; Jranian Students Association v. Edwards, 604 F.2d

at 353. In other words, the discretion of a district court in denying

an award of attorney’s fees to a prevailing plaintiff in a civil rights

case is limited absent special circumstances. In the case at bar,

however, the district court did not even exercise its discretion

because the plaintiffs did not meet the threshold requirement of

“prevailing party” status.

III. Conclusion

The district court was correct in holding that appel-

lants were not eligible for an attorney’s fees award un-

der 42 U.S.C. § 1988 because they were not “prevailing

parties” under § 1988.

AFFIRMED.

GOLDBERG, Circuit Judge, dissenting:

The Texas State Teachers Association (“TSTA”) has

won a hard fought battle for the first amendment rights

of teachers in the Garland Independent School District

(“GISD”). TSTA sought invalidation of GISD adminis-

trative regulation 412, which broadly prohibited union

access to school premises, and barred teachers from “talk-

ing union” on school grounds. TSTA lost in the district

court, but persuaded a panel of this Court to invalidate

the regulation. TSTA successfully defended this judg-

ment before the Supreme Court.

Today, the majority correctly applies the law of this

Circuit to the facts of this case and concludes that, not-

withstanding its apparent victory, TSTA is not the pre-

vailing party for the purpose of a fee award under The

Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C.

§ 1988 (“§ 1988”). By adhering to the law of this

Circuit, the majority persists in an approach to the

prevailing party standard that has been rejected by all

but one of the other circuits, flies in the face of Su-

preme Court precedent and is inconsistent with the legis-

lative purpose in enacting § 1988. Taking my law from

Congress as interpreted by the Supreme Court, I respect-

fully dissent.

I. The Central Issue Test Is Inconsistent With

Supreme Court Precedent

Under the Civil Rights Attorney’s Fees Act, a district

court may, in its discretion, award attorney’s fees to the

prevailing parties in lawsuits brought to enforce civil

rights.“ In Hensley v. Eckerhart, 461 U.S. 424, 103 S8. Ct.

1933, 76 L.Ed.2d 40 (1983), the Supreme Court discussed

the standard for determining the amount and propriety

of a fee award to a “partially prevailing plaintiff.” Id.

at 426, 103 S.Ct. at 1937. The Supreme Court quoted

with approval the First Cireuit's rule that “plaintiffs may

be considered ‘prevailing parties’ for attorney’s fees pur-

poses if they succeed on any significant issue in the liti-

gation which achieves some of the benefit the parties

sought in bringing the suit.” Id. at 433, 103 S.Ct. at

1939 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-

79 (Ist Cir.1978)). While the Court does not mandate

a specific “prevailing party” standard it does mandate a

method. Hensley expressly declares that a plaintiff can

be deemed the prevailing party even where only “minor”

relief was obtained, Id. at 439, 103 S.Ct. at 1942 (citing

Brown v. Bathke, 588 F.2d 634 (8th Cir.1978)), and

requires the district court to look to the results obtained

in determining the amount of an award. Under Hensley

the degree of success goes to the amount of an award,

not to the propriety of that award.

This Circuit has rejected the “generous formulation” of

Nadeau v. Helgemoe, approved by the Supreme Court in

Hensley, in favor of a crabbed standard which deems a

party “prevailing” only if he or she “has been successful

on the central issue . . . as exhibited by the fact that he

has acquired the primary relief sought.” Commonwealth

Oil Refining Co. v. Equal Employment Opportunity Com-

mission, 720 F.2d 1383, 1385 (5th Cir.1983) (emphasis

original) (quoting /ranian Students Association v. Ed-

wards, 604 F.2d 352, 353 (5th Cir.1979)); see also

42 U.S.C. § 1988 provides: [Iln any action or proceeding to

enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of

[title 42 of the United States Code], . the court, in its discretion,

may allow the prevailing party, other than the United States, a

reasonable attorney's fee as part of the costs.”

meyer used these tools as well as they. be used. He

looked to the number of lines in the complaint and the

amount of time spent at trial proving the various issues.

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or at trial, simply because its importance is not matched

by its complexity.

The Supreme Court has eschewed such an inquiry,

stating that the method for dealing with partial success

is to reduce the amount of the award, not to engage in

extended inquiry into the plaintiff's subjective goal in

bringing the lawsuit, stating:

In some cases a plaintiff may present in one law-

suit distinctly different claims for relief that are

based on different facts and legal theories. In such

a suit, even where the claims are brought against

the defendants—often an institution and its officers,

as in this case,—counsel’s work on one claim will be

unrelated to his work on another claim. ... The

congressional intent to limit awards to prevailing

parties requires that these unrelated claims be treated

as if they had been raised in separate lawsuits.

Hensley 461 U.S. at 434-35, 103 S.Ct. 1940.

In Hensley, the Supreme Court noted and did not dis-

approve the central issue test, Jd. at 433 n.8, 103 S.Ct.

1939 n.8. At that point no decision applying the central

issue test had rendered it facially inconsistent with the

principles articulated in Hensley. Indeed, with one excep-

tion, cases decided at the circuit level since Hensley would

most likely have been decided the same way under the

“generous formulation.” See Commonwealth Oil Refining

Co. Inc. v. E. E. O. C., 720 F.2d 1383, 1386 (5th Cir.1983)

(Tate, J., dissenting) ; Simien v. City of San Antonio, 809

F.2d 255 (5th Cir.1987). But see Uviedo v. Steves Sash &

Door Co., 760 F.2d 87, 88 (5th Cir.1985) (Rubin, J., dis-

senting from denial of a Suggestion for Rehearing En

Banc).

This case, however, clearly demonstrates the point at

which the central issue test and the generous formulation

diverge. Plaintiffs have received significant relief, but

they failed to win the primary relief sought. Hensley

lla

made it clear that the method for dealing with such

partial success was to withhold payment for unsuccessful

claims, not to withhold fees altogether. Here plaintiffs

vindicated important first amendment rights. Section

1988 mandates compensation for getting what they got,

regardless of whether they got what they wanted.

II. There is a Clear Split in Circuits Which Must be

Resolved by the Supreme Court.

In any other circuit, save the Eleventh, see, e. g., Miami

Herald Publishing Co. v. City of Hallendale, 742 F.2d

590, 591 (Iich Cir.1984), plaintiffs would receive an

award of attorneys’ fees as a matter of course. Eleven

Cireuits have followed the First Circuit’s “generous for-

mulation”; Miller v. Staats, 706 F.2d 336, 340-41 (D.C.

Cir.1983); Gingras v. Lloyd, 740 F.2d 210, 212 (2nd

Cir. 1984); Abraham v. Pakarski, 728 F.2d 167, 175 (3d

Cir.), cert. denied, 467 U.S. 1242, 104 S.Ct. 3513, 82

L.Ed.2d 822 (1984); Lotz Realty Co., Inc. v. U.S. Dept.

of Housing, 717 F.2d 929, 931 (4th Cir. 1983); Kentucky

Association for Retarded Citizens Inc. v. Conn, 718 F.2d

182 (6th Cir.1983); Mary Beth G. v. City of Chicago,

723 F.2d 1263, 1276-77 (7th Cir.1983); Fast v. School

Dist. of City of Ladue, 728 F.2d 1030, 1032 (8th Cir.

1984) ‘en banc); Lummi Indian Tribe v. Oltman, 720

F.2d 1124, 1125 (9th Cir.1983); Jn re Kansas Congres-

sional Dists. Reapportionment Cases, 745 F.2d 610, 612

(10th Cir.1984). This Circuit and the Eleventh (following

old Fifth Cireuit precedent) have persisted in their use of

the central issue approach.

Indeed, there is even a split within this Circuit. Posada

v. Lamb County, Tex., 716 F.2d 1066, 1071 n. 6 (5th Cir.

1983) (endorsing the “generous formulation” of Nadeau

v. Helgemoe). This Circuit when faced with this in-

consistency in its own law, the non-conformity of that

law with Supreme Court precedent and the rejection of

the central issue approach by every circuit faced with the

12a

question since Hensley, has steadfastly refused to review

the question en banc. Uviedo v. Steves Sash & Door Co.,

760 F.2d 87, 88 (5th Cir. 1985) (Rubin J., dissenting

from denial of a Suggestion for Rehearing En Banc). If

this federal statute is to be uniformly applied, the Su-

this

preme Court must grant certiorari in order to resolve

split in circuits.

III. The Central Issue Approach is Inconsistent with

The Legislative History of Section 1988

A. The Purpose of § 1988

In enacting § 1988 Congress sought to increase the

number of suits brought to vindicate public rights, by

eliminating the financial uncertainty associated with such

suits, saying:

In many cases arising under our civil rights laws, the

citizen who must sue to enforce the law has little or

no money with which to hire a lawyer. If private

citizens are to be able to assert their civil rights,

and if those who violate the Nation’s fundamental

laws are not to proceed with impunity, then citizens

must recover what it costs them to vindicate these

rights in court.

S.Rep. No. 1011, 94th Cong., 2d Sess. x, reprinted in

1976 U.S.Code. Cong. Adm. News 5908, 4

this clear mandate, the central issue test sets a nee

threshold for recovery, thereby leaving any attorney who

vindicates important public rights bet achieves only

partial success uncertain as to whether he or she will

recover fees.

The legislative history does not speak directly to the

degree of certainty required but there is strong evidence

that Congress intended fees to be awardable even when

plaintiff did not succeed on the central issue of the litiga-

tion. The Senate Report on § 1988 expressly approved

13a

awards of attorneys’ fees pendente lite, and in the process

suggested a lower “prevailing party” threshold than re-

quired in this Circuit:

In appropriate circumstances, counsel fees under

1988] may be awarded pendente lite. See Bradley

v. School Board of City of Richmond, 416 U.S. 696,

94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Such awards

are especially appropriate where a party has pre-

vailed on an important matter in the course of liti-

gation, even when he ultimately does not prevail on

all i

S. Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976

U.S. Code Cong. Adm. News 5908, 5912 (emphasis

added). Hanrahan v. Hampton, 446 U.S. 750, 100 S. Ct.

1987, 64 L.Ed.2d 670 (1980). Thus the suggested stand-

ard for interim attorney’s fees is simply success on an

important matter.” Paradoxically, the law of this Cir-

cuit requires a litigant who succeeds at trial to achieve a

greater degree of success than the interim fee applicant

envisioned by Congress. After trial, a litigant must suc-

ceed on the central issue.

This inconsistency becomes more important when one

recognizes that many suits brought under § 1983, for

example, are not simple bipartite suits which end with a

jury verdict or order. Many cases are ongoing institu-

tional cases, brought to desegregate schools, see, e. g.,

United States v. Board of Education of City of Chicago,

744 F.2d 1300 (7th Cir.1984), to reform prisons, see,

e.g., Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.1982), or

mental institutions, see, e. g., Lelsz v. Kavanagh, 629 F.

Supp. 1487 (1986). These cases often consist of trials,

consent decrees, injunctions, damage judgments and hear-

ings, all carried out over the course of many years.

These crucial cases consist of many small victories and

many small defeats. No individual attorney could bear

the cost of prosecuting such a suit without the avail-

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CA 3-81-0412-R

Texas STATE TEACHERS ASSOCIATION, ef .

Plaintiff,

GARLAND INDEPENDENT Scho. DtsTrRict,

Defendant.

[Filed Mar. 3, 1987]

MEMORANDUM OPINION AND ORDER

After an appeal from this Court's order dated August

24. 1984 ‘see Texas State Teacher Association v. Garland

Independent School District, 777 F.2d 1046 (5th Cir.

1885 plaintiffs have returned to this Court seeking

attorneys’ fees under 42 U.S.C. £1988. Plaintiffs are the

Texas State Teachers Association (“TSTA”): Garland

Education Association GEA“ Joe Atkins, a TSTA

member; and Janice Hill, a member of GEA. Defendants

are the Garland Independent School District (“GISD”) :

its Board of Trustees; Harris Hill, Synda Gordon, Mike

Cloud. Don Hollenshead. Mike Boyd, Randy Clark and

M.D. Williams, IV in their official capacities as trustees:

and Jill Shugart in her official capacity as Superintend-

ent of GISD.

17a

permits a court to award attorneys’ fees

“prevailing” party in a civil rights suit. Jd. “In

circuit the test for prevailing party status is whether

plaintiff prevailed on central issue by acquiring

primary relief sought.” Simien v. City of San An-

No. 85-2723, slip op. at 2184 (5th Cir. Feb. 6,

(emphasis added) (citing Commonwealth Oil Re-

. EEOC, 720 F.2d 1383, 1385 (5th Cir.

party who achieves success on fewer

iss ies cannot recover attorneys’ fees unless

which he did succeed amounted to the cen-

the lawsuit. Commonwealth Oil, 720 F.2d at

circuit’s test, the court “must

the allegations made with the results obtained

a winner.” Commonwealth Oil, 720 F.2d at

tet

the events leading up to the filing of this

lawsuit are set forth in this Court's 1984 order as well

as in the Fifth Cireuit's opinion, 777 F.2d at 1048-49,

they are restated here for their relevance to the deter-

mination of prevailing party status:

On January 8 and 9, 1981, representatives of TSTA

visited several GISD schools during school hours. In most

of the schools the representatives attempted to visit, the

principal or assistant principal relied on GISD Adminis-

trative Regulation 412' to prevent them from distribut-

i Administrative Regulation 412 provides:

Relationship with employee organizations will be consistent

with Article 21-904 of the Texas Education Code. Accordingly,

the following procedures will be observed:

1. Employee membership in any organization is a matter of

free choice.

2. The central and local school administration position is neu-

tral. It neither encourages nor discourages membership in any

[Continued]

18a

ing literature or meeting with G'SD teachers. This law-

suit followed. Plaintiffs claimed that GISD policy as ex-

pressed in Administrative Regulation 412 violated their

rights under the first and fourteenth amendments—

rights of free speech, free association, equal protection,

and due process—and were unconstitutionally overbroad.

In addition to declaratory and injunctive relief, Plaintiffs

sought nominal, actual and exemplary damages as well

as attorneys’ fees.

Defendants denied Plaintiffs’ allegations and both

parties moved for summary judgment. this court denied

Plaintiffs’ motion “with one minor exception”? (Memo-

1 [Continued]

3. Faculty meetings called and conducted by the principal are

for school-related matters. An employee organization matter

shall not be part of the agenda.

4. Organizational meetings of local building members before

or after school hours may be held in school facilities upon

request to and approval by the local school principal. Meetings

held before school hours must be adjourned no later than

8:00 a.m. or the privilege will be denied.

5. Group meetings or individual conferences conducted by an

elected official of any employee organization for purposes of

membership recruitment or any other matter of business, shall

not be conducted on school premises during school hours. School

facilities may be used for such purposes before or after school

hours upon request to and approval by the local principal.

Meetings held before school hours must be adjourned no later

than 8:00 a.m. or the privilege will be denied.

6. The school mail service shall not be used by any employee

organization.

7. Distribution of material directly in mailboxes at the school

is prohibited.

8. The use of school district equipment and supplies by any

employee organization is prohibited.

9. The public address system is for school business only. Asso-

ciation announcements shall not be made on school equipment.

2 No appeal was taken from this part of the Court’s Order. 777

F.2d at 1060.

19a

randum Opinion and Order of August 24, 1987, at 3;

see id., at 18-19), and granted Defendants’ motion in all

other respects, including the question of attorneys’ fees

(Id., at 21 & n.26). Plaintiffs appealed.

On appeal, the Fifth Circuit affirmed the decision of

this Court on all matters respecting “communications

instigated by outside representatives of TSTA who desire

access to school communications facilities.” 777 F.2d at

1050. They did, however, agree with the Plaintiffs and

reversed this Court’s decision respecting communications

among GISD teachers only holding “that GISD policies

which purport to deny teachers the right to discuss TSTA

or TSTA business during ron-class time are unconstitu-

tional.” Id. at 1055. The Fifth Circuit also held “that

GISD policies preventing teachers from using school mail

facilities to mention ‘employee organizations’ are uncon-

stitutional.” Id.

Because the Fifth Circuit did not address this Court’s

denial of attorneys’ fees, this Court is free to reconsider

the matter here. Barrett v. Thomas, No. 86-1172, slip

op., at 2282 (5th Cir. Feb. 12, 1987).

As a result of the Fifth Circuit’s decision, Plaintiffs

achieved only partial success. They did not prevail on

claims relating to the TSTA’s use of school communica-

tions facilities—school mail service, bulletin boards, pub-

lie address system or other school equipment. They did

not sueceed in achieving access by TSTA to teachers dur-

ing school hours, nor did they succeed on claims relating

to other forms of distributing literature to teachers dur-

ing school hours.

It is clear, not only from the background of the law-

suit, but also from the claims as presented by Plaintiffs,

that their challenge to GISD’s policy limiting communi-

eations and access between TSTA and GISD teachers

comprised the gravamen of Plaintiffs’ lawsuit. This chal-

lenge amounted to the central issue. The Plaintiffs did

not prevail on this issue and did not achieve the results

they sought. Accordingly, they cannot recover attorneys

fees in this circuit under 42 U.S.C. § 1988. See Simien,

slip op., at 2184; Commonwealth Oil, 720 F.2d at 1385.

For the foregoing reasons, it is the ORDER of this

Court that Plaintiffs’ motion for attorneys’ fees be

DENIED.

SIGNED this 3rd day of March, 1987.

/s/ Jerry Buchmeyer

JERRY BUCHMEYER

United States District Judge

2la

APPENDIX C

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 84-1833

TEXAS STATE TEACHERS ASSOCIATION,

GARLAND EDUCATION ASSOCIATION,

Joe ATKINS AND JANICE HILL,

0 Plaintiffs-A ppellants,

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-A ppellees.

Dec. 6, 1985

Appeal from the United States District Court

for the Northern District of Texas

Robert H. Chanin, Jeremiah A. Collins, Washington,

D.C., for plaintiffs-appellants.

Law Offices of Earl Luna, Earl Luna, Robert E. Luna,

Dallas, Tex., for defendants-appellees.

Before GARZA, JOHNSON and WILLIAMS, Circuit

Judges.

JERRE S. WILLIAMS, Circuit Judge:

This appeal involves a claim brought by a teacher

organization against a school district under 42 U.S.C.

§ 1983 (1981). Appellants contend that policies of appel-

lees deny them access to school grounds and school media

facilities and restrain free speech in violation of their

First and Fourteenth Amendment rights. Appellants are

the Texas State Teachers Association (TSTA); the Gar-

constitutionally protected right of free speech access to

of appellees. TSTA appeals from the grant of summary

FACTS

TSTA is a voluntary employee organization. It sought

to distribute TSTA information to teachers in GISD

to use

boxes, billboards, and the public address system—as

mediums for the distribution of their information.

GISD policy, as expressed in Administrative Regula-

tion 412, totally prohibits any “employee organiza-

Administrative Regulation 412 prohibits representatives of em-

ployee organizations from recruiting, organizing, or meeting with

GISD teachers on school grounds during school hours. In addition,

it denies employee organizations any access to the school’s internal

system. It provides, in pertinent part:

Relationships with employee organizations will be consistent

with article 21-904 of the Texas Education Code. Accordingly,

the following procedures will be observed

1. Employee membership in any organization is a matter of

free choice.

2. The central and local school administration position is neu-

tral. It neither encourages nor discourages membership in

any employee organization.

(Continued }

tion” from meeting or recruiting during “school hours”,’

and from using school communication facilities for the dis-

1 [Continued]

shall not be conducted on school premises during school

hours. Sci. Al facilities may be used for such purposes be-

— —x — 2 —

—————

be denied.

6. The school mail service shall not be used by any employee

organization.

7. Distribution of material directly in mail-boxes at the school

is prohibited.

8 The use of school district equipment and supplies by any

9. The public address system is for school business only. Asso-

School officials interpret the phrase “elected official” in Admin Reg.

412(5) as including any employee representative, whether or not an

elected representative, so long as that employee is “promoting” the

organization. School officials interpret Admin Reg. 412(8) as pro-

hibiting the use of school billboards by employee organizations.

ing of the GISD policies.

The term “school hours” means “the entire period between

8-00 a.m. and 3:45 p.m. of each school day except for days when

school may be let out early.”

24a

semination of information concerning employee organiza-

tions. GISD policy allows employee organizations to meet

or recruit teachers on school premises before 8:00 a.m.

or after 3:45 p.m. “upon request to and approval by the

local principal.” GISD policy also allows the distribution

of literature on school premises (parking lots, hallways,

and placement on teachers’ desk) during non-school

hours.

On January 8 and 9, 1981, TSTA representatives

visited numerous GISD schools during school hours.

Relying on GISD Administrative Regulation 412, the

principal or assistant principal of most schools refused

to permit the TSTA representatives to distribute litera-

ture or to meet with GISD teachers.

This lawsuit resulted. Appellants claimed that these

GISD policies violated their First and Fourteenth

Amendment rights of free speech, free association, and

equal protection of the laws, and were unconstitutionally

vague and overbroad. Appellants argued that these poli-

cies, as interpreted and implemented by school officials,

operated to deny GISD teachers their right to discuss

TSTA business even during non-class times such as the

lunch hour several GISD teachers and administrators —

are members of TSTA). Appellants further contended

that school officials routinely granted access to school

communication facilities to other commercial and civic

organizations (upon approval of the principal), and that

“employee organizations” were discriminatorily denied

access.

Appellees denied that their policies violated the appel-

lants’ First and Fourteenth Amendment rights. They

argued that the GISD schools are not a public forum,

and therefore appellants have no right to access. Appel-

lees urged that reasonable alternative means of commu-

nication were available to TSTA—i.e., meeting after

school hours, distributing literature on school property

after school hours, or contacting teachers at school or

home through the United States Postal Service. Finally,

appellees contended that allowing employee organizations

to use school facilities would disrupt the learning process

and would be contrary to Texas Education Code § 21.904

—which requires a school district to maintain a position

of neutrality with respect to employee membership in

various organizations.“

The parties each filed a motion for summary judg-

ment. The district court granted appellants’ motion for

partial summary judgment as to Admin. Reg. 412(4) and

(5)—which permits employee organizations to use school

premises for meetings during non-school hours only

“upon request to and approval by the local school prin-

cipal.” The district court held that this rule was un-

constitutionally overbroad.* This holding is not appealed.

As to the remainder of appellants’ claims, the district

court granted appellees’ motion for summary judgment

and denied appellants’ motion. We reverse in part and

affirm in part.

THE RIGHT TO COMMUNICATF

In granting the GISD motion for summary judgment,

the district court relied upon Perry EHucation Assn. v.

Perry Local Educators’ Assn., 460 U.S. 37, 103 S. Ct.

948, 74 L.Ed.2d 794 (1983). Under Perry, the “exist-

ence of a right of access to public property and the

standard by which limitations upon such a right must

* Section 21.904 provides, in pertinent part: “No school district,

board of education, superintendent, assistant superintendent, prin-

cipal, or other administrator benefitting by the funds provided for

in this code shall directly or indirectly require or coerce any teacher

to join any group, club, committee, organization, or association

TEX.EDUC.CODE § 21.904 (Vernon 1972).

s Because appellants did not show any refusal of access during

non-school hours, no relief was given with respect to this holding.

be evaluated differ depending upon the character of the

property at issue.” Perry, 460 U.S. at 44, 103 S.Ct. at

954, 74 L. Ed. 2d at 804.

Perry describes the three types of forums that exist

in public property for First Amendment purposes at 460

U.S. 45, 103 S.Ct. 954-55, 74 L.Ed.2d 804: (1) Public

Forums: These are areas “which by long tradition or by

government fiat have been devoted to assembly and de-

bate.” Examples are public streets and parks. Speech

may not be suppressed for content in these forums unless

the state shows a “compelling state interest” and a regu-

lation “narrowly drawn to achieve that end.” Public

forums are also subject to reasonable “time, place, and

manner” restrictions. (2) Limited Public Forums: These

are forums which the state has voluntarily “opened for

use by the public as a place for expressive activity.” As

long as the forum remains open, speech is protected to

the same extent as in a public forum. In a limited public

forum, only “similar entities” to those allowed access

have a protected right of speech. (3) Non-Public Forums:

This is “property which is not by tradition or desig-

nation a forum for public communication.” In a non-

public forum, “the state may reserve the forum for its

intended purposes . . . s long a the regulation on speech

is reasonable and not an effort to suppress expression

merely because public of cials oppose the speaker’s view.”

GISD policy, as expressed in Administrative Regula-

tion 412, affects two different classes of communications:

(1) communications instigated by outside representatives

of TSTA who desire access to teachers and school com-

munication facilities; and (2) communications among

GISD teachers employed by the schools. A different

analysis is relevant to each separate type of communi-

cation. Because appellants are appealing a summary

judgment, we must look at the evidence in the light most

favorable to them. Simon v. United States, 711 F.2d 740,

743 (5th Cir.1983).

27a

A. Communications of Outside TSTA Representatives

1. During school hours

Schools are not considered traditional public forums

in which outside visitors may freely espouse their views.

See Widmar v. Vincent, 454 U.S. 263, 267 n. 5, 102 S.Ct.

269, 273 n. 5, 70 L.Ed.2d 440, 446 n. 5 (1981); Perry,

460 U.S. at 47, 103 S.Ct. at 956, 74 L.Ed.2d at 806.

Moreover, school administrators must be given broad

discretion in supervising the visitation of the school en-

vironment by persons not associated with the school. Hail

v. Board of School Commissioners of Mobile County, Ala-

bama, 681 F.2d 965 (5th Cir.1982). Because GISD

schools are not public forums, outside TSTA representa-

tives have no constitutional right of access. Professional

Association of College Educators v. El Paso County Com-

munity College District, 730 F.2d 258, 263 (5th Cir.

1984), cert. denied. U.S. ——, 105 S. Ct. 248, 83

L.Ed.2d 186 (1984). Appellants argue, however, that

the school has allowed other visitors from civic and com-

mereial groups to meet with teachers during school hours,

and has therefore voluntarily created either a public

forum or a limited public forum.

GISD permits selected groups of educators, textbook

salesmen, and representatives of civic and charitable or-

ganizations to meet with students and faculty during

non-class school hours. These meetings must concern

school-sponsored or related activities and must not in-

terfere with class time. Those persons seeking access

must obtain prior permission from the school principal,

and in some cases, from the Superintendent’s office. The

district court found that:

In each case, the policies carefully limit the access

of selected visitors by requiring them to report to

the principal’s office before visiting other parts of

the campus, by prohibiting visitors from roaming

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2. Use of school mail facilities

Unless it has been opened to the general public, a

school mail system is not a public forum. Perry, 460

U.S. at 47, 103 S.Ct. at 955-56, 74 L.Ed 2d at 806. The

Cir.1976).

Appellants argue that GISD allows other commercial

and civic organizations to use school communication facili-

ties. They then contend that either a public forum or a

limited public forum has been created in GISD communi-

cation facilities, to which the appellants should be granted

access. Appellants assert that “employee organizations”

are the only groups denied access to GISD facilities.

The evidence indicates that GISD has not created a

public forum in its communication facilities. On occasion,

ganizations such as the PTA, Little League, Boy Scouts,

Junior Achievement, teacher bowling and swimming

groups, and Board-approved insurance companies. Simi-

larly, in Perry, certain community and eivie groups—.e.,

the Cub scouts, YMCA, local church groups, ete.—were

granted access to school mailboxes. Nevertheless, Perry

held that t his type of selective access does not trans-

form government property into a public forum.” 460

U.S. at 47, 103 S.Ct. at 956, 74 L.Ed. 2d at 806.

Likewise, TSTA has no right of access under a claim

of “limited public forum.” No “similar entities” to TSTA

—ie., other employee organizations—are granted access

te GISD facilities" It is permissible to refuse to “grant

* See supre note 6 and accompanying text (TSTA not “similar

entity” te groups allowed access).

31a

employee organizations the right to use the school mails

at all.” Ysleta Fed. of Teachers v. Ysleta Ind. Sch. Dist.,

720 F.2d 1429, 1433 (5th Cir.1983). In short, GISD has

not created a public forum and also has not created a

“limited public forum” for entities similar to employee

organizations. Therefore, we hold that GISD may pre-

vent outside representatives of “employee organizations”

from using school communication facilities.

It is important to note, however, that GISD’s argument

that Admin.Reg. 412 is necessary in order to comply with

Texas Education Code § 21.904—-which forbids school dis-

tricts from “coerc[ing]” teachers to join any “group, club,

committee, organization, or association” is without merit.

Appellees contend that allowing the mention of TSTA or

other employee organizations on campus during school

hours will somehow be seen as “coercion” by the school

district to join those organizations. However, a policy

which allows all employee organizations access under the

same guidelines does not constitute “coercion.” See Wid-

mar, 454 U.S. at 273-76, 102 S.Ct. at 276-78, 70 L.Ed.2d

at 449-51 (mere grant of access to religious organization

does not “confer any imprimatur of state approval“);

Gay Alliance of Students v. Matthews, 544 F.2d 162, 165

(4th Cir.1976) (No university approval of organization

implied from university’s recognition of organization) .*

B. Communications of GISD Teachers.

1. Private Communications

Regulations on the speech of those who teach within

the schools obviously must be drawn more narrowly than

regulations on the speech of outside representatives. See

Country Hills Christian Church v. United School District

® Curiously, GISD permits communications concerning other

teacher groups, such as bowling teams, without any apparent con-

cern that it is thereby coercing teachers to join such groups.

32a

512, 560 F.Supp. 1207, 1214-15 (D.Kan.1983) (cited with

approval by this Court in Ysleta, 720 F.2d at 1435) ;

Hall, 681 F.2d at 968 (distinction exists between teacher

communications and the rights of “persons not assigned

to the schools”). Perry, which concerns the rights of or-

ganizations outside the schools, does not apply to teacher

communication within the school. See Country Hills, 560

F.Supp. at 1215, 1220; see also Hastings v. Bonner, 578

F.2d 136, 143 (5th Cir.1978) (“[T]here is no doubt

that this circuit has adopted and now applies the Tinker

test in cases involving the First Amendment rights of

teachers.”). The Tinker test comes from Tinker v. Des

Moines Independent Community School District, 393 U.S.

503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969), which held

that teacher communications may be suppressed only

when “the expression or its method of exercise materially

and substantially interferes with the activities or disci-

pline of the school.” Id., see also Shanley v. Northeast

Ind. Sch. Dist., 462 F.2d 960, 969 (5th Cir.1972).

The evidence indicates that school officials interpret

Admin.Reg. 412 as prohibiting any discussions among

teachers relating to TSTA or TSTA business or,relating

to any teacher organization that occur on school premises

during school hours, even though those discussions occur

during lunch hour or other non-class time.“ Although

„ Assistant Superintendent Beavers testified as follows:

Q: Can you tell me whether the district has a policy or

practice which prohibits teachers from discussing teacher em-

ployee organization matters between the hours of 8:00 and

3:45 on school days?

A: Yes, we do.

Q: Does it matter what the content of the conversation is

or where on campus it occurs?

A: No it doesn’t.

Q: Are two teachers—does it matter whether they are

members or nonmembers of an organization?

A: No.

[Continued]

33a

acknowledging that such an interpretation is unconstitu-

tional, the district court disregarded this issue because it

* [Continued]

Q: If two teachers then are walking down the hall going to

lunch and they start chatting about an upcoming TSTA seminar

in Austin, is this a violation of that policy?

A: Technically it would be.

Q: If two teachers are sitting having lunch and they start

talking about a TSTA membership drive and nobody else is

within ear shot and both of them are voluntarily partaking of

the conversation, is that a violation of your district’s policies?

A: Technically it would be a violation.

Principal Hardy testified as follows:

Q: If I were a member of TSTA and I were a member of

your faculty, would there ever be a circumstance under which

I could discuss TSTA business with other faculty members

during school hours?

A: Not during the school hours.

Q. [In general if one wanted to [discuss TSTA business

during school hours], he or she could not, could she?

A: She probably could illegally. She couldn’t—

Q: If she did so, she would be violating the rules, wouldn’t

she?

A: Yes.

Q: What rules are we talking about? Are we still talking

about Administration Regulation and Policy—

A: 412.

Principal White testified as follows:

Q: Do you have a policy as to whether two or more teachers

can confer regarding teacher organization matters during

school hours?

: Yes.

What is the policy?

: 412.

: They can’t do it?

A: No.

Q: Does it matter whether they are members of an or-

ganization?

A: No.

Superintendent Douglas testified as follows:

34a

found that “there has never been any attempt to enforce

such an interpretation.” After reviewing the evidence in

the light most favorable to appellants, we must disagree.

First, it is undisputed that school officials would pro-

hibit GISD teachers from discussing TSTA if, in their

view, such discussion amounted to “promoting” the organi-

zation. The district court found (and appellees argue on

appeal) that punishment of speech “promoting” employee

organizations is justified under an opinion of the Texas

Attorney General. Texas Atty.Gen.Op. M.W. 89 held that

it was a violation of the Texas Constitution to allow

teachers to perform employee organization business on a

“release time” basis.“ The Attorney General found that

such a program was unconstitutional because it con-

stitutes an unconditional grant of public funds to a private

organization.” Appellees urge that private teacher dis-

cussions during non-class time are comparable to the

“release time” program.

The “release time” program is not at all comparable to

private teacher conversations even though those conversa-

tions may be proselytizing. The “release time” program

provided that teachers who would otherwise be teaching

would be allowed to be absent from their teaching duties

for a specified number of days to work for an employee

organization at the school district’s expense. Here, in

Q: Can four non-elected members of TSTA who happen to

be teachers and who happen to be taking a 10-minute coffee

break in your teachers’ lounge or work room—can they legiti-

mately discuss next month’s TSTA seminar in Austin?

~ __A: We ask our staff members from [sie] refrain from dis-

cussing professional organizations and associations during the

course of the school day.

Q: From 8:00 to 3:45?

A: 8:00 to 3:45.

Q: So it would be technical violation?

A: Yes.

% The “release time” program provided that “nine days of release

time with full pay will be allotted to professional organizations for

each 100 members who are in good standing.”

contrast, the issue is the right of teachers to discuss mat-

ters relating to employee organizations at times when the

teachers would not otherwise be required to teach, but

would be “free to talk about whatever they want,” in-

cluding “the Cowboy game .. lor] what they did over

the weekend.“ To allow teachers to speak favorably of

an employee organization does not constitute an unlawful

“grant of public funds to [the] organization,” any more

than to allow teachers to speak favorably of a political

party, a church, a club, or a football team during the

lunch hour constitutes an unlawful grant of public funds

to such an organization.”

Second, there is firm evidence indicating that officials

might be inclined to enforce their policies against all

teacher speech mentioning TSTA that occurs on school

premises during the school day whether the teacher is in

the classroom or not.“ Appellees’ evidence in response

demonstrates only that there is no active monitoring of

teacher conversation.“ This evidence does not establish

"Testimony of Assistant Superintendent Beavers and Principal

White.

The “release time” program is not at issue in this case and we

express no opinion regarding the Texas Attorney General's Opinion.

13 See testimony, supra note 9.

The district court referred to the following testimony in con-

cluding that “there has never been any attempt to enforce such an

interpretation” of Admin. Reg. 412(5) :

Q: Now on just general freedom on [sic] speech on talking

about whatever they want to talk about, there is no attempt to

monitor or keep the teachers from talking about whatever they

want to talk about, is there?

A: (Principal White) None whatsoever.

Q: But you don’t have any way of monitoring it to eaves-

drop on people to be sure that they didn’t talk about the party

they went to last night?

[Continued }

that officials would refrain from enforcing violations of

which they became aware. For example, there is no

indication that officials would not take at least some sort

of disciplinary action against a teacher whose violation

of Admin.Reg. 412 was reported to officials by another

teacher.

Finally, the mere fact that this policy exists is sufficient

to support appellants’ cause of action. Even if no officials

attempt to overhear teacher conversations, conscientious

teachers should be expected to obey school regulations.“

The regulation inhibits the speech of law abiding teach-

ers. Thus, even without actual monitoring of conversa-

tions, the rule chills teacher speech in violation of their

First Amendment rights. See Dombrowski v. Pfister, 380

U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) ; Spartacus,

ete. v. Board of Trustees of Illinois, 502 F.Supp. 789,

796-97 (N. D. III. 19800 (“Injury to First Amendment

rights may result from the threat of enforcement itself,

since it may chill . . . ardor and desire to engage in

protected expression.“

;

We hold that GISD policies which purport to deny

teachers the right to discuss TSTA or TSTA business

during non-class time are unconstitutional. Appellees have

not demonstrated that such conversations result in a ma-

[ Continued}

A: (Assistant Superintendent Beavers) No, sir, we don't

do that.

Q: Bat being responsible people you would expect them

[the teachers] to keep their conversation generally along the

lines of the school business?

A: Yessir.

18 Although acknowledging that officials do not eavesdrop on con-

versations, Assistant Superintendent Beavers testified as follows:

Q: Teachers are professional people?

A: Yes.

Q: And you expect them generally to follow the regulations?

A: Yes, we do.

terial and substantial interference with the activities or

discipline of the school.”

2. Use of school media facilities

The primary purpose of GISD’s internal mail system

is to distribute official messages between school adminis-

trators and teachers and among the teachers

GISD allows teachers to communicate with each other on

any subject, including purely personal matters, except for

subjects relating to employee organizations.

Appellees argue that prohibiting teacher communica-

tions as they relate to “employee organizations” is proper

because it preserves the neutrality mandated by the Texas

Education Code. As noted above, we find no merit to

that contention." Teachers who have access to school

media facilities for even purely personal matters cannot

be prohibited from the exercise of that right simply

because their internal speech may concern “employee

organizations.” We therefore hold that GISD policies pre-

venting teachers from using school mail facilities to

mention “employee organizations” are unconstitutional.

So also are prohibitions against the use of whatever bill-

board facilities may be set aside for teachers’ personal

messages. No “material and substantial” disruption has

been shown.

CONCLUSION

We affirm that part of the summary judgment which

upholds Administrative Regulation 412’s prohibition

against visitation and use of school media by outside

Neither appellees nor appellants distinguish access to use the

public address system from the access granted to use the mail

system or the schoo! billboards. Obviously, schools do not generally

allow teachers to broadcast personal messages over their loudspeak-

ers. The use of the public address system has not been placed at

issue in this case.

See text accompanying note 8, supra.

38a

employee organization representatives during schoo] hours.

We reverse that part of the summ judgment which up-

holds Administrative Regulation 412's application to pri-

vate teacher conversations and use of schoo] media facili-

ties by teachers employed in GISD schools as those media

facilities are otherwise available to teachers for their

personal messages. We grant appellants’ motion for par-

tial summary judgment holding the application of the

Regulation to these activities unconstitutional.

AFFIRMED in part; REVERSED in part; and RE-

MANDED for proceedings not inconsistent with this

opinion.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

No. 85-1890

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.,

appellants,

TEXAS STATE TEACHERS ASSOCIATION, et al.

Appeal from the United States Court of Appeals

for the Fifth Circuit

Case below, 5 Cir., 777 F.2d 1046; 784 F.2d 1113.

Oct. 6, 1986. The judgment is affirmed.

THE CHIEF JUSTICE and Justice WHITE would

note probable jurisdiction and set the case for oral argu-

ment.

Justice SCALIA took no part in the consideration or

decision of this case.

40a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No, 3-81-0412-R

TEXAS STATE TEACHERS ASSOCIATION,

GARLAND EDUCATION ASSOCIATION,

Joe ATKINS and JANICE HILL,

7 Plaintiffs,

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants.

[Filed Aug. 24, 1984]

MEMORANDUM OPINION AND ORDER

The Garland Independent School District (“GISD’”)

“{otally prohibits “employee organizations” '—such as the

exas State Teachers Association—from using the school

mail system, the bulletin boards and the public address

system. It also prohibits representatives of employee

organizations from recruiting or having any meetings

with teachers on school premises during “school hours.“

Employee Organization is defined as any organization whose

main purpose is to represent a group of employees in matters of

employment practices and procedures.” Both TSTA and GEA are

employee organizations within the meaning of the GISD polices

in question. Stipulation No. 5.

The term “school hours” means “the entire period between

8:00 a.m. and 3:45 p.m. of each school day except for days when

school may be let out early.” Stipulation No. 22.

4la

However, employee organizations are not prevented from

recruiting or meeting with teachers on school premises

before 8:00 a.m, and after 3:45 p.m. “upon request and

approval by the local school principal” *—and they may

distribute literature on school premises (parking lots,

hallways, ete.) or place material on teachers’ desks dur-

ing non-school hours.*

This case involves a constitutional challenge to these

GISD policies—which were promulgated by the Garland

Board of Trustees and which are implemented by the

various principals of GISD schools. The plaintiffs are

the Texas State Teachers Association (“TSTA”), a volun-

tary employee organization with members employed as

GISD teachers; the Garland Education Association

(“GEA”), a TSTA local affiliate; Joe Atkins, a TSTA

employee; and Janice Hill, a GEA member employed as

a GISD teacher. The defendants are the Garland Inde-

pendent School District; Harris Hill, Donald Senter, Cash

Birdwell, Jim Burns, Mike Cloud, Don Hollenshead, and

M.D. Williams, IV, in their official capacities as GISD

Trustees; and Eli Douglas, in his official capacity as

GISD Superintendent.

8 Under the summary judgment record before this Court, there

is no evidence that any GISD principal ever denied permission for

TSTA (or any other employee organization) to use school premises

during non-school hours for recruiting, meetings, or distribution of

literature. See footnote 11.

Employee organizations may also contact the GISD teachers at

school through the United States mail, or they may contact them

at home either by mail or phone. Indeed, GISD will furnish any

employee organization with the name, home address, and phone

number of each GISD teacher so home contacts can be made.

5 The challenged policies were adopted under Article VII, section

1 of the Texas State Constitution and section 23.26(d) of the Texas

Education Code. Section 23.26(d) provides: “The trustees [of an

independent school district] may adopt such rules, regulations, and

by-laws as they may deem proper.”

the legal issues have been settled—and this Court's opin-

ion is mandated—by the 5-4 decision of the United States

Supreme Court in Perry Education Assn. v. Perry Local

Educators’ Assn., 103 S. Ct. 948 (1983) (summary judg-

ment rejection of constitutional challenge to schoo! policies

prohibiting access to interschool mail system and teacher

mailboxes). Accordingly, with one minor exception, the

constitutional chalienge is rejected, the plaintiffs’ motion

for sumary judgment is DENIED, and the defendants’

motion for summary judgment is GRANTED.

faculty representative.’ At some schools, however, either

the school principal or the school secretary—contrary to

the GISD policies—granted the requests of the TSTA

representatives.“

* The plaintiffs assert that the primary purpose

was to discuss the proposed new certification standards

public school teachers. The defendants contest this, and claim that

the

the primary purpose of the visits was to challenge policies in-

volved in this lawsuit. The “ purpose of these visits is not

relevant to the disposition of © © legal issues in this case—since

the GISD policies prohibit all meetings between TSTA representa-

tives and teachers during school hours. See footnotes 7, 12, 13, 14.

On each school campus, teachers who are TSTA members select

one teacher-member to represent them.

* The deposition testimony establishes that, at two schools (Hill-

side and Rowlett), the principals permitted TSTA representatives

bers or not, on school premises during school hours;

(ii) placing literature in the teacher mailboxes or

using the school’s internal mail service;

(iii) using the bulletin boards or posting an-

nouncements or other materials anywhere on school

premises; and

ing to challenge only those two policies. Other policies, however,

are relevant to their equal protection claims including: Poli.y

Statements 425, 426, 535, 1, 804.2, 807, and 808;

Specifically, the plaintiffs claim that these policies

late their First Amendment rights of free speech

free association—and are unconstitutionally vague

overbroad because they vest unfettered enforcement

cretion in school administrators without providing

ciently explicit guidelines. Further, the plaintiffs

that school officials have granted access

violation of the plaintiffs’ rights to equal

that GISD has violated their due process

process

eit ¢

132

The defendants deny that these policies, either

face or as applied, violate the plaintiffs’ First and

teenth Amendment rights. They maintain that the

schools are not public fora—that, therefore, TSTA

bers are not entitled to exercise their

rights “whenever and however they

instead, those rights are subject to the

place, and manner regulations promulgated by

Board of Trustees. Further, the defendants contend

communication

lige 548

gert

8:00 a.m. and after 8 p.m.

bn the pasting tate op halinunn Gp nen TN an anne

desks before 8:00 a.m. and after 3:45 p.m.; 1 and by

officials rely on the general policy of neutrality (Texas Education

Code § 21.904) to justify the prohibitien against posting employee

organization literature.

The plaintiffs claim that these are not “reasonable alternative“

avenues of access because teachers ordinarily do not report to their

classrooms until 8:00 a.m. they leave promptly at 3:45 p.m., and

because the outside sehee!l deors are locked at 3:30 p.m. every day.

Brank Dep. at 51-02; White Dep. at 15. Moreover, they claim that

45a

contacting teachers at school or home through the United

States Postal Service. Finally, with regard to use of the

internal mail system, teacher mailboxes, publie address

system, and bulletin boards, GISD asserts that allowing

an employee organization to use those means of com-

munication would not promote the learning process“

and that it would be contrary to Texas Education Code

§ 21.904, which requires the school district to maintain

a position of neutrality with respect to employee member-

ship in various organizations.”

Interpretation and Application of Adm. Reg. 412

Administration Regulation 412 absolutely prohibits

representatives of employee organizations from recruit-

if a teacher’s classroom door is locked prior to 8:00 a.m., school

officials will not unlock it to allow TSTA representatives to place

literature on the teacher’s desk. Douglas Dep. at 77-78. Disputing

these assertions, the defendants cite deposition testimony which

establishes that school officials will in fact allow TSTA representa-

tives to stand in the hallways or parking lots to hand out literature

both before and after school hours; that at least one principal would

unlock the outside doors for TSTA representatives to come in dur-

ing non-school hours, and that, if classroom doors are locked, TSTA

representatives may slip literature under the door. White Dep. at

21; Brank Dep. at 52-53; Douglas Dep. at 78-79.

If any school officials were to interpret the challenged policies in

such a manner as to deny access to employee organization repre-

sentatives during non-school hours, this would be directly contrary

to stated Board policy. The Board policies do allow reasonable

alternative access during non-school hours, and thus are constitu-

tional. Moreover, even if teachers normally arrive st prior to

8:00 a.m. and depart promptly at 3:45 p.m., TSTA wepresentatives

may ask teachers to arrive early or stay late. The s not

responsible for the refusal of any teacher to meet with a TSTA

representative during non-school hours.

12 Section 21.904 provides that “No school district, board. ef edu-

cation, superintendent, assistant superintendent, principal, or other

administrator benefitting by the funds provided for in this code

shall directly or indirectly require or coerce any teacher to join any

group, club, committee, organization, or association

46a

ing, organizing, or meeting with GISD teachers on school

grounds during school hours.“ In addition, it denies em-

ployee organizations any access to the school’s internal

mail system, teacher mailboxes, bulletin boards, and pub-

lic address system. Specifically, Adm. Reg. 412 provides:

“Relationships with employee organizations will be

consistent with Article 21-904 of the Texas Educa-

tion Code. Accordingly, the following procedures

will be observed:

1. Employee membership in any organization is a

matter of free choice.

2. The central and local school administration posi-

tion is neutral. It neither encourages nor discour-

ages membership in any employee organization.

18 In addition, the plaintiffs contend that several school officials

have interpreted Adm. Reg. 412(5) to prohibit teachers from dis-

cussing TSTA business among themselves on school premises dur-

ing school hours. See Beavers Dep. at 7; Roden Dep. at 65-66;

Douglas Dep. at 71; Hardy Dep. at 55-56; White Dep. at 35-38.

But see Brank Dep. at 22; Richey Dep. at 50-54; Collins Dep. at

21-23. The deposition testimony establishes, however, that even if

some school officials do interpret Adm. Reg. 412 in that manner,

there has not been any attempt to enforce such an interpretation.

See White Dep. at 69-70; Beavers Dep. at 54-55. Should school

officials seek to prohibit teachers from discussing organizational

business among themselves during non-class time, that action would

be unconstitutional. See Pickering v. Bd. of Educ., 391 U.S. 563

(1968).

On the other hand, the record does indicate that, consistent with

Texas Atty. Gen. Op. MW 839, school officials would prohibit teachers

from promoting an employee organization or working for that

organization during school hours. In that opinion, the Texas At-

torney General held that the Ft. Worth Independent School Dis-

trict was in error for allowing teachers to perform employee or-

ganization business on a “release time” basis. Allowing release

time work “constitutes an unconditional grant of public funds to a

private organization and is therefore unconstitutional.” Enforce-

ment of that policy is constitutional.

47a

3. Faculty meetings called and conducted by the

principal are for school-related matters. An em-

ployee organization matter shall not be part of the

agenda.

4. Organizational meetings of local building mem-

bers before or after school hours may be held in

school facilities upon request to and approval by the

local school principal. Meetings held before school

hours must be adjourned no later than 8:00 a.m. or

the privilege will be denied.

5. Group meetings or individual conferences con-

ducted by an elected official!“ of any employee or-

ganization for purposes of membership recruitment

or any other matter of business,“ shall not be con-

ducted on school premises during school hours.

School facilities may be used for such purposes be-

fore or after school hours upon request to and ap-

proval by the local principal. Meetings held before

school hours must be adjourned no later than 8:00

a.m. or the privilege will de denied.

1 The plaintiffs assert that GISD officials have interpreted the

term “elected official” to include any employee organization repre-

sentative, whether or not elected. Plaintiffs’ Undisputed Facts

14(b). Accordingly, they argue, that portion of Adm. Reg.

412(5) is vague and overbroad. The record does establish that

GISD officials focus on whether the representative is acting in his

or her official capacity and is seeking to discuss some type of TSTA

business, instead of personal matters—and, if so, the school official

apparently assumes that that representative is an “elected official”

covered by Adm. Reg. 412(5). That interpretation is consistent

and reasonable—because the regulations clearly seek to prohibit

recruiting, organizational activities, and meetings about any other

business between employee organization representatives and teach-

ers on school premises during school hours. Accordingly, whether

or not a representative was elected is not relevant to the legal

issues in this case.

1 The plaintiffs assert that the term “or any other matter of

business” includes “any subject or topic whatsoever, if it relates

48a

6. The school mail service shall not be used by any

employee organization.

7. Distribution of material directly in mailboxes at

the school is prohibited.“

8. The use of school district equipment and supplies

by any employee organization is prohibited.

9. The public address system is for school business

only. Association announcements shall not be made

on school equipment.”

By contrast, other Board policies give school principals

the discretion to permit selected visitors to meet with

teachers during non-class school hours, to distribute lit-

erature through the mail system, to post notices, or to

have announcements made on the public address system.

(i) Visitation Privileges

For example, Policy Statement 804.2 requires prin-

cipals to be prepared to receive and make welcome all

district personnel, patrons, educators from other school

in any way to TSTA or to any other employee organization.”

Plaintiffs’ Statement of Undisputed Facts at § 14(d). The defend-

ants dispute that statement to the extent that it may imply that

Adm. Reg. 412 prohibits meetings not related to recruiting, or-

ganizing, or some TSTA business. The summary judgment record

establishes, however, that Adm. Reg. 412 prohibits only meetings

during school hours concerning some type of TSTA business—and

would not, for example, prohibit a TSTA representative from meet-

ing with a teacher on a purely personal matter, such as a parent-

teacher conference concerning the child of the TSTA representa-

tive.

16 Administrative Regulation 412(7) prohibits all persons (ex-

cept school staff) from distributing material directly into teacher

mailboxes. The plaintiffs do not contest this “prior review” require-

ment, but instead assert that they should be allowed to submit

TSTA literature for distribution in the teacher mailboxes in the

same manner as any other organization.

49a

districts, and other visitors.“ Policy Statement 425 al-

lows salesmen and other solicitors to meet with GISD

teachers at school during school hours if they receive

prior permission from the school principal.“ It provides:

* The primary purpose of Policy Statement 804.2 is to improve

school-community relations and to increase the prestige of GISD

in the eyes of other educators. It provides:

“Visitation by members of the community to the school is

recognized as a vital part of the process of improving school-

community relations. Visitation by educators from other in-

stitutions is also vital in establishing the reputation of the

school district.

The defendants vigorously protest the assertion that GISD

policies permit other commercial and civic organizations to meet

with faculty and students during the school day. They claim that

the principals have been instructed administratively not to

allow such visits. The defendants, however, fail to cite any policy

or testimony that substantiates their claim. Moreover, the policies

specifically state that salesmen and representatives of other or-

ganizations may confer with teachers during the school day, on

matters concerning school-sponsored or related activities, if they

receive the principal’s permission. To instruct the principals not

to give their permission would make senseless a policy that allows

them that discretion. Further, the deposition testimony establishes

that school principals have allowed various salesmen and civic

group representatives to meet with faculty and students during

the school day. See White Dep. at 55-57 (fund-raising activities,

school equipment); Richey Dep. at 28 (textbook salesman); Nix

Dep. at 61-64 (cookware salesman before school); Hardy Dep. at

65-66, 70 (Boy Scout representative, MS volunteer, PTA president).

Although Policy Statement 425 is not at issue here, this Court

feels compelled to note that it is unconstitutionally overbroad. As

to certain civic and commercial organizations, the GISD schools

are limited public fora. For that reason, regulations affecting

First Amendment rights must be narrowly and precisely drawn.

The policy itself does not provide sufficient guidelines to limit the

discretion of school principals. Accordingly, it fails to meet the

constitutional standards for such a restriction. See Ysleta Fed. of

Teachers v. Ysleta Indep. School Dist., 720 F.2d 1429 (5th Cir.

1983); Shanley v. Northeast Indep. School Dist., 462 F.2d 960

(5th Cir. 1972).

Policy Statements 804, 804.1, and 807 clarify Policy

Statement 425 by limiting salesmen’s visits to school-

sponsored or related activities and by prohibiting such

meetings from interfering with class time. In addition,

Adm. Regs. 804.2(5) and (6)(d) require all visitors to

report to the principal’s office before visiting elsewhere

in the building, and prohibit all visitors from roaming

through the building unescorted.

(ii) The Mail System, Bulletin Boards, and Public

Address System

The primary purpose of GISD’s internal mail system

is to distribute official messages between school adminis-

trators and teachers and among the teachers themselves.

[See Richey Dep. at 58-60]. On occasion, however, school

principals have allowed certain commercial and civic or-

ganizations to submit literature for distribution through

that system. [Douglas Dep. at 48-54—Board-approved

insurance companies, PTA, Little League; White Dep. at

64—Junior Achievement; Nix Dep. at 91—teacher con-

sultants; Brank Dep. at 44-45—-YMCA, Boy Scouts, Girl

Scouts; Beaver Dep. at 40).

With respect to advertising and commercial announce-

ments, Policy Statement 808 provides:

“Advertising and commercial announcements shall

be made in the schools only upon approval of the

superintendent or his designee. Approved announce-

ments shall be made by the principal. Advertise-

ments may not be posted or distributed on the school

premises.”

The Status of the GISD Policies Under Perry

There is no question that constitutional interests are

implicated by the GISD policies. However, as emphasized

in Ysleta Federation Teachers v. Ysieta Independent

School District, 720 F.2d 1429 (5th Cir. 1983) :

speech applies to teachers’ mailboxes as surely as it

does elsewhere within the school . . . and on the side-

walks outside. Perry, —— US. . 103

S.Ct. 948, 954. 74 L.Ed.2d 794. 804 (citations

omitted). However, the federal courts have always

recognized that in the school context, judicial respect

for the free exercise of First Amendment rights by

teachers and students must be tempered by a recog-

nition that school administrators have broad latitude

in formulating and administering regulations to pro-

mote the safety and order necessary to the educa-

tional process. See Hall, 681 F.2d at 967-68." (710

F.2d at 1432) ‘emphasis added) .

Moreover, as Ysleta notes, in analyzing the GISD poli-

cies, this Court is bound by “the Supreme Court’s recent

and comprehensive discussion in [Perry Education As-

sociation v. Perry Local Educators’ Association, 103

S.Ct. 948 (1983)] of the standard by which to evaluate

limitations on the right of access” to the premises and

facilities of a public school.“

% Perry and Ysleta dealt only with access to a school’s internal

mail system. However, the Perry analysis applies equally to bulletin

boards, public address systems, and other school facilities—so long,

Under Perry, the “existence of a right of access to

public property and the standard by which limitations

upon such a right must be evaluated differ depending on

the character of the property at issue.” Perry, 103 S.Ct.

at 954. Not all public property constitutes a First

Amendment “public forum.” Instead, public property

falls into one of three categories:

(i) property “which by long tradition or by gov-

ernment fiat [has] been devoted to assembly and

debate” (“quintessential public forums);

(ii) “property which the state has opened for use

by the public as a place for expressive activity”

(“limited public forums“; and

(iii) “property which is not by tradition or desig-

nation a forum for public communication ” (non-

public forums). Id. at 954-56.

Where the property in question falls within the first or

second category, the state may regulate the content of

speech only by narrowly tailored laws designed to effec-

tuate a compelling state interest—in addition, the state

may enforce reasonable, content-neutral time, place, and

manner restrictions. Where the property in question falls

within the third category, however, the state not only

may impose reasonable time, place, and manner restric-

tions, but also “may reserve the forum for its intended

purposes, communicative or otherwise, as long as the reg-

ulation on speech is reasonable and not an effort to sup-

press merely because public officials oppose the speaker's

view.” Perry, 103 S.Ct. at 954-955.

Accordingly, the status of the GISD policies under the

Perry analysis—i.e., whether they violate the plaintiffs’

constitutional rights of free speech, free association, and

as here, there are alternative means of communication. See foot-

note 10.

equal protection—depends first, on the nature of the

forum, and second, on the nature of the policies.

Nature of the Forum

Although a school may be a traditional public forum

for teachers and students—See County Hills Christian

Church v. United School District 512, 560 F.Supp. 1207,

1214-15 (D.Kan. 1983) (cited with approval by the Fifth

Circuit in Ysleta, 720 F.2d at 1435)—it is not a public

forum for other groups unless the school district has

opened its doors for use by those groups. Perry, 103

S.Ct. at 956. Moreover, even if the school district has

granted access during school hours to representatives of

certain groups, “the constitutional right of access would

in any event extend only to other entities of similar char-

acter.” Perry, 103 S.Ct. at 956. In short, this type

of content-neutral selective access does not transform

goverment property into a public forum.” Id.

GISD has not granted permission as a matter of course

to all who seek access to school facilities during school

hours. See Perry, 103 S.Ct. at 956. Instead, the GISD

policies in question permit selected groups of educators,

salesmen, and representatives of civic and charitable or-

ganizations to meet with students and faculty during non-

class school hours.” In addition, those same groups may

submit materials for distribution through teacher mail-

boxes or for posting on school premises, and they may

submit announcements to be made on the public address

system. Those persons seeking access must obtain prior

permission from the school principal and, in some cases,

from the Superintendent’s Office. In each case, the poli-

cies carefully limit the access of selected visitors by

requiring them to report to the principal's office before

visiting other parts of the campus, by prohibiting visitors

* So long as the meetings concern school sponsored or related

activities and do not interfere with class time. See Policy State-

ments 804, 804.1, and 807.

54a

from roaming around the campus unescorted, and by di-

recting the school principals to take every precaution

necessary to ensure that the visitors do not interrupt

classes. Such selective, carefully-monitored visitation ac-

cess does not cause the GISD schools to become a public

forum for First Amendment purposes. See Perry, 103

S.Ct. at 956.

In addition, the school district has not permitted any

employee organization to use the internal mail system,

bulletin boards, or public address system, nor has it

opened these school facilities to unrestricted use by the

general public. Accordingly, under Perry, none of these

facilities constitutes a limited public forum as to em-

ployee organizations.*' Because the defendants have not,

either by policy or practice, transformed either the school

building, the surrounding premises or the internal facili-

ties into a limited public forum for employee organiza-

tions, Perry permits the GISD Board to promulgate time,

place, and manner restrictions along with other regula-

tions designed to “reserve the forum for its intended

2! Even if the GISD had created a limited public forum by per-

mitting such selective visitation and use of the mail systems,

tional right of access. It is undisputed that GISD policies deny the

right of access to all employee organizations. Accordingly, no em-

ployce organization would enjoy such a right. As Perry states:

“Moreover, even if we assume that by granting access to the

Cub Scouts, YMCAs, and parochial schools, the school district

has created a ‘limited’ public forum, the constitutional right

of access would in any event extend only to the other entities

of similar character. While the school mail facilities thus

use,” so long as those regulations are both reasonable

and content-neutral.”

Reasonableness of the Policies

“Implicit in the concept of the nonpublic forum is the

right to make distinctions in access on the of sub-

ject matter and speaker identity, . . . [so lofig as] they

are reasonable in light of the purpose which the forum

at issue serves.” Perry, 103 S.Ct. at 957. The defend-

ants correctly argue that the exclusion of employee organ-

izations, while granting access to selected groups—such

as the Boy Scouts, the PTA, and other civic and com-

munity organizations, is reasonable in light of a school’s

function. In particular, the defendants make these argu-

ments:

;

= The plaintiffs vigorously assert that the Tinker-Shanley test

applies here. Under that test, school officials may prohibit expres-

sive conduct only if it “materially and substantially interferes with

the requirements of appropriate discipline in the operation of the

school.” Tinker v. Des Moines School District, 393 U.S. 503 (1969).

That test, however, applies only to a public forum. See Connick v.

Meyers, 103 S.Ct. 1684, 1692 4 1692 n.12. Tinker, unlike this case.

dealt with the First Amendment rights of students for whom a

school is a public forum.

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tion [sic] to use school premises for meetings during

non-school hours “upon request to and approval by the

school principal.” Because this “prior clearance

The plaintiffs assert that GISD failed to provide an ad-

ministrative process to review adverse decisions by

cipals concerning the challenged policies, and that

failure violates their constitutional rights to due process.

The defendants respond that Policy Statement 106.4,

governing complaints, forth a specific, expedited re-

59a

view process that satisfies the requirements of Shanley v.

Northeast Independent School District, 462 F.2d 960,

977-78 (5th Cir. 1972).

The defendants are correct. Policy Statement 106.4

provides a specific, expedited means of complaining about

a principal’s interpretation or implementation of GISD

policies. The plaintiffs did not request a copy of this

Policy Statement nor, apparently, did they make a formal

complaint to the principals involved, as required by Policy

Statement 106.4.“ In addition, 19 T.E.C. § 61.231 pro-

vides for a hearing before the local school board for

“grievances or controversies involving administration ac-

tions or problems . . . provided request in writing has

been timely filed . . . as prescribed in § 157.43. . . of

this title.” The record does not establish that the plain-

tiffs timely filed a hearing request. Accordingly, the

plaintiffs were not denied due process.

The Parties’ Stipulations, filed on December 14, 1982, contain

a complete copy of Policy Statement 106.4. It specifically provides:

“The procedures outlined in the above paragraphs shall be

available to parent advisory councils, parents, teachers, and

other concerned organizations or individuals, and shall be dis-

seminated to interested parties, including school district em-

ployees, parent-teacher organizations, ESEA Title I district

and campus parent advisory committees and anyone else re-

questing a copy of these procedures.” (emphasis added)

25 The plaintiffs argue that, on December 30, 1980, Frank Hill

(TSTA counsel) wrote to GISD official Harry Beavers “suggesting

a conference between T.S.T.A. and the Garland I.S.D. administra-

tion for the purpose of discussing and perhaps developing alterna-

tives or modifications to the policies and practices at issue.

The defendants never responded to that request because, according

to them, such a conference would have been fruitless since the

Board of Trustees, not the school administration, formulates school

district policies. Whether fruitless or not, the defendants should

have responded to the Hill letter by informing the plaintiffs of the

proper procedure by which to challenge Board policies. On the other

hand, the plaintiffs, aided by legal advice at that point, could have

requested a formal hearing before the GISD Board of Trustees, but

failed to do so.

60a

In any event, under Adm. Reg. 412, school principals

do not have the discretion to grant access to the school

premises during school hours to representatives of em-

ployee organizations. Accordingly, any administrative re-

view of a decision to follow Adm.Reg. 412 would be fruit-

less. An employee organization must either request a

hearing before the GISD Board of Trustees, or, as the

plaintiffs did, file a lawsuit. Moreover, if an employee

organization should be denied permission to hold a meet-

ing on school premises during non-school hours, it cer-

tainly may appeal by following the procedures outlined in

Policy Statement 106.4. Accordingly, the due process

rights of employee organizations are protected.

For the reasons discussed, the Plaintiff’s Motion for

Summary Judgment is DENIED, with the exception

that the stated portions of Adm. Reg. 412(4) and (5)

are unconstitutionally overbroad. With the same excep-

tion, defendants’ Motion for Summary Judgment is

GRANTED. Since the plaintiffs are not “prevailing par-

ties“ under 42 U.S.C. 1988,“ and since their suit was

certainly not frivolous or brought in bad faith, neither

side is entitled to an award of attorneys fees. Costs, how-

ever, are taxed against the plaintiffs.

SIGNED this 24 day of August, 1984.

/s/ Jerry Buchmeyer

JERRY BUCHMEYER

United States District Judge

26 Because of Perry, the only issue on which the plaintiffs pre-

vailed was one of minor significance in this case (see footnotes 3,

10), since there was no evidence t at the plaintiffs were ever

refused permission to use school premises during non-school hours.

See Hensley v. Eckerhart 103 S.Ct. 1933 (1983).

6la

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-1221

D.C. Docket No. CA-3-81-0412-R

TEXAS STATE TEACHERS ASSOCIATION, et al.,

Plaintiffs-A ppellants,

versus

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Texas

Before , GOLDBERG, WILLIAMS, and HIGGIN-

BOTHAM, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the District Court in this cause is affirmed.

IT IS FURTHER ORDERED that plaintiffs-appellants

pay to defendants-appellees the costs on appeal, to be

taxed by the Clerk o. this Court.

February 8, 1988

GOLDBERG, Circuit Judge, dissenting.

Issued as Mandate: Mar. 1, 1988

OPPOSITION

BRIEF

In The

Supreme Court Of The United States

OCTOBER TERM, 1987

TEXAS STATE TEACHERS ASSOCIATION, et al.,

Petitioners,

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.,

Respondents.

On Petition for Writ of Certiorari to The

United States Court of Appeals

for The Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

LAW Orrices or EARL Luna, PC.

Ear Luna, Counsel Of Record

Mary MILForRD

STEVEN M. Dow

4411 N. Central Expressway

Dallas, Texas 75205

(214) 521-6001

Attorneys For Respondents

COUNTERSTATEMENT OF THE

QUESTION PRESENTED

May a Plaintiff who achieved none of the benefit sought

in bringing the suit but who prevailed on a secondary issue

which arose during the course of the litigation, be a

“prevailing party” for purposes of an attorney's fees award

under 42 U.S.C. § 1988.

TABLE OF AUTHORITIES

Page

Cases:

Alveska Pipeline Service Co. u. Wilderness Society,

. 421 U.S. 240, 95 S.Ct. 1612 (1975). ................ 12

Austin ». Department of Commerce, 742 F.2d

r ũ è 5 17

Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979) 18

Busche v. Burkee, 649 F.2d 509 (7th Cir.),

cert. denied, 454 U.S. 897 (1981) .................. 17

City of Riverside v. Rivera, 477 U.S. 561,

r . 11

Davis v. West Community Hospital, 755 F. 2d

Ne ee. ccc ececccces 10

Fast v. School District of City of Ladue,

728 F.2d 1030 (8th Cir. 1984) ................... 11,17

Garland Independent School District, et al.,

v. Texas State Teachers Association, et al.,

e GUE, oc csccccccccccccces 6

Gingras v. Lloyd, 740 F.2d 210 (2nd Cir. 1984) ........ 17

Hensley v. Eckerhart, 461 U.S. 424,

r ̃ůũ Ee 8,9

Hewitt v. Helms, U.S. —, 107 S.Ct. 2672(1987) ..... 12

Howard v. Phelps, 443 F.Supp. 374, (E.D.La. 1978) .... 13

| In re Kansas Congressional Districts

) Reapportionment Cases, O'Sullivan v. Brier,

| 745 F.2d 610 (10th Cir. 1964) ..................... 17

Institutionalized Juveniles v. Secretary of

Public Welfare, 758 F.2d 897 (3rd Cir. 1984) ... 11, 17, 19

u ii

TABLE OF AUTHORITIES ——(Continued)

Page

Cases:

Iranian Students Association v. Edwards,

604 F.2d 362 (Sth Cir. 1979) .... 2... 2... ccc ccc ceees 13

Kreimes v. Department of Treasury,

764 F.2d 1186 (6th Cir. 1980): 17

Lummi Indian Tribe v. Oltman, 720 F.2d 1124

, ̃ ...... 17

Maher v. Gagne, 448 U.S. 122, 100 S.Ct.

r RE perso pe eee ey ee 11

Maine Thiboutot, 448 U.S. 1, 100 S.Ct.

D r 15

Martin v. Heckler, 773 F. 2d 1145 (11th Cir. 1985) 18

Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983) ........ 17

Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir. 1978) . 8, 10, 17

Parker v. Matthews, 411 F.Supp. 1059

(D.D.C. 1976), aff'd sub nom Parker v. Califano,

1 ED cotiiccccctececesccess 13

Regents of the University of California v.

Public Employment Relations Board,

„eee eee 6

Simien v. City of San Antonio, 809 F. 2d 255,

/ / / eee 18

Taylor v. Sterrett, 640 F. 2d 663 (5th Cir. 198177 10

Texas State Teachers Association, et al. v. Garland

Independent School District, et al., 777 F.2d

1046 (5th Cir. 1985), reh. en banc den.

784 F.2d 1113 (1986), aff'd. __U.S.__,

De, ee el ee ed a 6

TABLE OF AUTHORITIES ——(Continued)

Page

Cases:

Texas State Teachers Association, et al. v Garland

Independent School District, et al., 837 F.2d

e caeeensneseeenenese 7, 11

Webb v. Board of Education of Dyer County,

B rn, aD ék<ccccoccnenes 11

Statutes:

1444 — ——ů————— ů ——— 4

IIe 2. 6

I 14

Other:

H.R. Rep. No. 94-1558, 94th Cong.,

I ̃ 5! eee 13

S. R. Rep. No. 94-1011, 94th Cong.

2d Sess. (1976), U.S. Code Cong. &

Admin. News 1976, p. 5909 et seq. ............ 13, 15

Garland Independent School District

Administrative Regulation No. 412 ............... 2

NO. 87-1759

In The

Supreme Court Of The United States

OCTOBER TERM, 1987

TEXAS STATE TEACHERS ASSOCIATION, et al.,

Petitioners,

GARLAND INDEPENDENT SCHOOL DISTRICT, et al.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

Respondents respectfully request that this Court deny the

Petition for Writ of Certiorari filed by Petitioners seeking

review of the Judgment in the United States Court of

Appeals for the Fifth Circuit which affirmed the Judgment of

the district court in this cause.

STATUTE INVOLVED

The Civil Rights Attorney's Fees Awards Act, 42 U.S.C. §

1988, provides in pertinent part as follows:

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this title,

litle IX of Public Law 93-318, or title VI of the

a reasonable attorney s fee as part of the costs.

STATEMENT OF TEE CASE

Petitioners,’ Texas State Teachers Association (TSTA)

and Garland Educatio Association (GEA), are aiSlicied

teachers’ unions. Pet..oner Atkins was a representative of

TSTA, and Petitioner Hill was President of GEA, a member

of TSTA and a teacher at the Garland Independent School

District (GISD).*

The facts giving rise to Petitioners’ action are undisputed.

Essentially, on January 8 and 9, 1981, nine TSTA represen-

tatives, acting alone or in pairs, visited numerous GISD

schools during school hours but were refused permission to

distribute their literature or to meet with GISD teachers

or the TSTA faculty representative. The school officials

based their refusal on Administrative Regulation 412

RE: Professional Freedoms and Individual Rights

The Garland Independent School District, its

Board of Trustees, the Superintendent, assistant

‘Petitioners were Plaintiffs and Appellants below

The GISD is an independent school district organized pursuant to the

laws of the State of Texas for the purpose of operating public schools. It

employs approximately |,700 teachers at 46 schools, and enrolls approx

mately 30,500 students from kindergarten through the twelfth grade.

(Rec. pp. 192, 193, 202 — Stipulations 8, 14 and 15).

superintendents, principals, other administrators.

and supervisors shall not directly or indirectly

require, coerce, or unduly influence any employee

of the District as respects:

1. joining, or not joining, anv group, club, commit

tee, organization, or association; or

2. participating in, or refraining from participating

in, political affairs in the community, state,

and nation.

No District funds, vehicles, facilities (during

scheduled school time or employe working time)

shall be used in any manner in political activities:

however, this policy does not prohibit the use of

school facilities as voting places for elections dur-

ing scheduled school time.

Relationship with employee organizations’ will be

tion . Accordingly, the following procedures

will be observed.

1. Employee membership in any organization is a

matter of free choice.

2. The central and local school administration

position is neutral. It neither encourages nor

discourages membership in any employee

organization.

3. Faculty meetings called and conducted by the

principal are for school-related matters. An

than 8:09 a.m. or the privilege will be denied.

‘The parties have stipulated that the TSTA and GEA are “empiovee

organizations” whose main purpose is to represent a group of emplovees

in matters of emplovmert practices and procedures.

organization for purposes of membership

recruitment or any other matter of business,

shall not be conducted on school premises

during school hours. School facilities may be

used for such purposes before or after school

hours upon request to and approval by the local

principal. Meetings held before school hours

must be adjourned no later than 8:00 a.m. or the

privilege will be denied.

6. The school mail service shall not be used by any

employee organization.

7. Distribution of material directly in mailboxes at

the school is prohibited.

8. The use of school district equipment and sup-

plies by any employee organization

prohibited.

9. The public address system is for schoo! business

only. Association announcements shall not be

made on school equipment.

The school district’s refusal to permit union access to the

teachers during school hours on campus and refusal to per-

mit union utilization of the school mail service resulted in

this lawsuit. On March 31, 1981, Petitioners filed a Com-

plaint against the GISD, its Board of Trustees and its

Superintendent, seeking damages under 42 U.S.C. § 1983

and injunctive and declaratory relief, alleging that some of

the GISD policies were unconstitutional as written and as

applied. The only allegations in the Complaint about the

GISD policies were in regard to the union’s access to the

teachers and mail facilities at the school during school

hours. (R. Vol. 1, p. 1-9). There is no mention in the Com-

plaint of the only point on which Petitioners finally pre-

vaiied in regard to the teachers’ communications with other

teachers. Due to the importance of the Complaint in deter-

mining what the issues in this case were, the Complaint is

attached hereto as Appendix A for the Court’s convenience.

Petitioners and Respondents filed respective Motions for

Summary Judgment. (R. Vol. 1, p. 23; R. Vol. 3, p. 1).

On August 24, 1984, Judge Buchmeyer entered his Memo-

randum Opinion and Order ruling in favor of the Respon-

dents, with the exception of a ruling regarding vagueness of

portions of the regulation as applied, which the Court

described as “one of minor significance to this case”. (R.

Vol. 2, p. 373-393, n. 26; Petitioners’ App. 40a) The district

court opinion dealt with the teachers’ communications

among themselves, the only issue on which the Petitioners

finally prevailed, in a footnote to its opinion and found that

factually the District does not enforce an interpretation of

the regulation in a manner to prohibit teachers from dis-

cussing union business among themselves. (R. Vol. 1, p. 379.

n. 13; Petitioners’ App. 46a).

Petitioners appealed. The Fifth Circuit panel decision

affirmed the district court in all respects except it reversed

on the issues regarding the teachers’ communications with

other teachers orally and through the school mail system.

The reversal was based on an evidentiary finding that the

District “would”, if the occasion ever arose, interpret the

regulation to prohibit teacher to teacher communications on

union business and, therefore, the regulation as applied in

such a manner would be unconstitutional. The pane! also

held that since GISD allowed teachers to use the school mail

system to communicate with each other on any subject, they

could also communicate on matters relating to the union.

The panel let the requlation stand as written. Texas State

Teachers Association, et al. v. Garland Independent School

District, et al, 777 F.2d 1046 (5th Cir. 1985), h. en banc

den. 784 F.2d 1113 (1986). Since the panel's decision regard-

ing teachers’ conversations was based on a future and hypo-

thetical interpretation, rather than on a present controversy

involving Administrative Regulation 412, Respondents

appealed to this Court, which affirmed the panel decision.

Garland Independent School District, et al. v. Texas State

Teachers Association, et al. U.S.. 107 S.Ct. 41 (1986).

The second issue presented in the appeal concerned

whether the union, which does not have direct access to the

school mail system, can achieve the same access by having a

teacher, rather than an outside member of the union, place

the materials in the mail system for distribution by the

school to all teachers. This issue has been answered by this

Court's recent decision in Regents of the University of Cali-

fornia v. Public Employment Relations Board, US...

108 S.Ct. 1404 (1988), which would prohibit the school's

distribution of mail on behalf of the union. In fact, this

decision prohibits distribution of any materials by the

school on behalf of the teachers, including even teachers’

private communications.

On remand to the district court, Petitioners filed a Motion

for Attorneys’ Fees seeking reimbursement for all attorneys’

time expended since the inception of this suit. (R. Vol. 5,

p. 404).

On March 3, 1987, Judge Buchmeyer entered his Mem-

orandum Opinion and Order that Petitioners were not the

prevailing party and were, therefore, not entitled to attor-

neys fees under 42 U.S.C. § 1988. (Petitioners’ App. 16a)

The Fifth Circuit agreed with the district court that

Petitioners were not prevailing parties and were not eligible

for an award of attorneys’ fees and affirmed the district

court decision. The pane! decision was split with Justices

Williams and Higginbotham affirming the district court

decision and Justice Goldberg dissenting. Texas State Teach-

ers Association, et al. v. Garland Independent School District,

et al., 837 F.2d 190 (5th Cir. 1988).

The pane! found that Petitioners did not succeed on the

central issue of their suit nor did they obtain the primary

relief sought. Judge Williams stated:

The main thrust of this lawsuit was Appellants’ attempt

to open up GISD school campuses during school hours

to outside representatives of employee organizations

like TSTA and GEA and to allow such organizations

the use of school communications facilities. Appellants

failed in this attempt, and this was the primary relief

sought in this lawsuit... The central issue in this

case was employee organization access to GISD cam-

puses, not internal teacher communcations within

these campuses.

Texas State Teachers Association, et al. v. Garland Indepen-

dent School District, et al., 837 F.2d at 192.

Not only was access the central issue, it was the only issue

pled. The teacher communication issue on which Petitioners

prevailed was not an issue, either factually or legally, in the

Complaint. The basis for the issue emerged during deposi-

tion answers to hypothetical questions in which some, but

not all, of the GISD administrators gave their individual

interpretations of the Regulation in this regard. Petitioner

Janet Hill was also a teacher at GISD and could have sought

class representation for the teachers, but, this was not an

action brought for the protection of the teachers’ rights.

This case was brought by the unions and their representa-

tives seeking to establish rights to be exercised by the

unions. They did not gain any rights or bring about any

change from any current practice at the GISD.

SUMMARY OF THE ARGUMENT

The panel's decision, which applied the central issue stan

dard to determine that Petitioners were not the prevailing

party in this case, is not contrary to this Court's decision in

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983), or

any other decision of this Court. The Hensley decision did

not establish the standard used in Nadeau v. Helgemoe, 581

F.2d 275 (ist Cir. 1978), or any other standard which would

conflict with the decision in this case, as the standard to be

applied for purposes of determining prevailing party status.

In fact, this Court referred to the Nadeau standard as a

“generous” one, thereby indicating that it may be more than

intended by Congress.

The central issue standard is set forth in Parker v.

Matthews, 411 F.Supp. 1059 (D. D. C. 1976) which is cited by

H.R. Rep. No. 94-1558 as an example of the congressional

intent in regard to prevailing party status. Not only is this

standard approved by the legislative history, it is also a

reflection of sound judicial policy to prevent the prolifera-

tion of civil rights litigation for the purposes of collecting

attorney's fees.

REASONS WHY THE WRIT

SHOULD NOT BE GRANTED

I. THE DECISION BELOW DOES NOT CONFLICT

WITH THIS COURT'S DECISION IN HENSLEY

V. ECKERHART.

Contrary to Petitioners’ assertion, the Hensley decision

neither accepted or rejected any particular Circuit's stan-

dard for determining when a party is a prevailing party. The

Hensley decision dealt with the amount of the attorney's

fees rather than the initial entitlement to fees.

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983),

involved an initial three-count complaint filed in 1972.

Count | challenged the constitutionality of treatment and

conditions at a state hospital. Count Il challenged the place

ment of patients without procedural due process and was

resolved by consent decree. Count II] sought compensation

and was mooted in 1974 when the hospital began paying

for labor. In 1975. the complaint was refiled containing the

original Count I on conditions at the hospital and contain

ing a Count II seeking back wages for the inmate labor, but

Count II was voluntarily dismissed. In August 1979, follow

ing a three-week trial on Count l. the district court entered

a judgment in favor of the Plaintiffs holding they had a

constitutional right to minimally adequate treatment and

conditions.

The Plaintiffs then requested attorney's fees from 1975,

when the second complaint was filed, through the trial. The

reduced minimally for the inexperience of one attorney and

failure to keep contemporaneous records. Also, the district

court declined any enhancement factor. The Eighth Circuit

This Court granted certiorari to address the issue of

recovery of attorney's fees for legal services on unsuccessful

claims. Hensley, 461 U.S. at 426, 103 S.Ct. at 1936.

The opinion sets forth the existence of the threshold

requirement for attorneys fees that the plaintiff must be a

“prevailing party”. Justice Powell then recognizes that the

standard for determination of prevailing party status has

been “framed in various ways”. The opinion does not adopt

or reject any of the various formulations. It only refers to

the First Circuit standard in Nedeau t Helgemoe, 581 F.2d

275 (ist Cir. 1978) as “typical”. in fact, the only commen-

tary on the First Circuit standard made by the Court was

that it was a “generous formulation”. Hensley, 461 U.S. at

433, 103 S.Ct. at 1999. Justice Powell also references cases

from the Seventh and Ninth Circuits and quotes from Tay-

lor v. Sterrett, 640 Fd 663 (5th Cir. 1981) that the “proper

focus 1s whether the plaintiff has been successful on the cen-

tral issue as exhibited by the fact that he has acquired the

primary relief sought.” Hensley, 466 U.S. at 434, n. 8, 105

S.Ct. at 1939, n. 8 The Court's opinion did not adopt any of

these positions.

Respondents take issue with Petitioners statement at p.

13 of their Petition for Writ of Certiorari that the Hensley

case stated that the “prevailing party” requirement is

intended to be a “generous” one. The court made no such

statement, it merely referred to the Nadeau formulation as

“generous”. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939.

Ever since the Hensley decision, the Fifth Circuit has

interpreted it as a mandate to first ascertain that the plain

tiff was the “prevailing party”, then to set fees based on the

degree of success of the prevailing party. See Davis vu. West

Community Hospital, 755 F.2d 455, 468 (Sth Cir. 1985). This

analysis was correctly carned over to the panel decision in

this case in which the opinion stated that the Hensley court

“merely accepted the ‘generous formulation’ of the ‘prevail

it to be the only correct definition.” The panel went on to

note that:

“prevailing parties” under §1988, then they are not even

eligible for an attorney's fees award.

Texas State Teachers Association, et al. v. Garland Inde-

pendent School District, et al., 837 F.2d 190, 192 (5th

Cir. 1988).

This Court has recognized that there is some quantum of

relief required to be a prevailing party even though it has

not determined the boundaries of the requirement. In

Maher v. Gagne, 448 U.S. 122, 131, 100 S.Ct. 2570, 2575

(1980), Justice Powell stated that “Nor can we accept peti-

tioners’ contention that respondent did not gain sufficient

relief through the consent decree to be considered the pre-

vailing party.” (emphasis added).

Many of the post Hensley circuit decisions which adopted

the Nadeau v. Helgemoe standard, acknowledge that this

Court did not adopt that test as the only standard for

prevailing party status.‘ Most subsequent Supreme Court

decisions on attorney's fees have primarily involved compu-

tation matters to determine the amount of the fee award to

the prevailing party and have not given any indication that

Hensley established a test to determine the threshold ques-

tion of whether the plaintiff is a prevailing party. The

opinions a start the discussion based on the premise that

the plaintiff was the prevailing party. See City of Riverside v.

Ribera, 477 U.S. 561, 106 S.Ct. 2686 (1986); Webb v. Board

of Education of Dyer County, US... 105 _ S.Ct.

1923 (1985).

the Supreme Court's opinion does not state in so many words that

the standard we have just quoted is the only permissible one under §

1988. The Supreme Court's opinion says only that the standard quoted is

la] typical formulation Fast v. School District of City of Ladue, 728 F.2d

1030, 1032, n.2 (8th Cir. 1984).

the Supreme Court did not prescribe one uniform articulation of the

prevailing party standard in Hensley.” Institutionalized Juveniles v. Secre-

tary of Public Welfare, 758 F.2d 897, 911 (3rd Cir. 1984).

In Hewitt u. Helms, U.S., 107 S.Ct. 2672 (1987), this

Court did embark on a discussion of prevailing party status

within the facts presented by that case.“ Judge Scalia reiter-

ated that in order to be eligible for attorney fees the litigant

must be a “prevailing party” and opened his discussion

acknowledging the lack of definition to the term by stating:

“Whatever the outer boundaries of the term may be....” The

most notable aspect of the Hewitt opinion, including the dis-

senting opinion, is the complete absence of any mention of

Hensley v. Eckerhart or the “typical formulation” mentioned

therein as the standard to be applied to determine whether

the plaintiff is the prevailing party in a case. Judge Scalia

and the dissenting Justices would not have ignored the

Hensley decision in regard to the standard to be applied to

determine whether a plaintiff is a prevailing party if in fact

the Hensley decision did set forth such a standard as Peti-

tioners allege. The Hewitt opinion’s lack of mention or

reliance on Hensley completely refutes Petitioners’ claim

that Hensley set forth the Nadeau v. Helgemoe language as

the standard to be applied.

II. THE DECISION BELOW REFLECTS CON.-

GRESSIONAL INTENT AND SOUND JUDICIAL

ADMINISTRATION

Congress passed the Civil Rights Attorney’s Fees Award

Act of 1976 in response to this Court’s decision in Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95

The case presented the “peculiar-sounding question of whether

a party who litigates to judgment and loses on all of his claims can

nonetheless be a ‘prevailing party’ for pu of an award of

attorney fees.” The claim on which the plaintiff sought fees was

an appellate ruling that his complaint should not have been dis-

missed for failure to state a constitutional claim. Judge Scalia

held: “That is not the stuff of which legal victories are made.”

Hewitt, __U.S._., 107 S.Ct. at 2674, 2675.

S.Ct. 1612 (1975), holding that without statutory authoriza-

tion, a prevailing litigant was not entitled to recover attor-

ney’s fees. S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976),

U.S. Code Cong. & Admin. News 1976, p. 5909.

While Congress did not define the term “prevailing party

as used in 42 U.S.C. §1988, it attempted to explain the

meaning of the term in the House and Senate Reports

accompanying the bill.

”

Congress intended that the standard for awarding fees be

generally the same as under the fee provisions of the 1964

Civil Rights Act and both the House and Senate Reports

cited numerous cases as examples to be followed. H.R. Rep.

No. 94-1558 and S. Rep. No. 94-1011, 94th Cong., 2d Sess.

(1976), U.S. Code Cong. & Admin. News 1976, p. 5912. One

such case cited by H.R. Rep. No. 94-1558 is Parker v.

Matthews, 411 F.Supp. 1059 (D.D.C. 1976), aff'd sub nom

Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977).

The Parker decision was the first enunciation of the cen-

tral issue standard which became the standard for the Fifth

Circuit.“ Absent a definition of “prevailing party”, the dis

trict court in Parker relied on the plain meaning of the lan-

guage of the statute for its decision and first looked at

Black's Law Dictonary (rev. 4th ed. 1968, p. 1352) which

contained the following definition for “prevailing party”:’

That one of the parties to a suit who successfully pros-

ecutes the action or successfully defends against it, pre-

vailing on the main issue, even though not to the extent

of his original contention. [citations omitted].

*The Fifth Circuit formally enunciated the “central issue” test in /ra-

nian Students Association v. Edwards, 604 F.2d 352, 353 (5th Cir. 1979),

citing Howard v. Phelps, 443 F.Supp. 374 (E.D. La. 1978), which relied on

Parker v. Matthews, 411 F.Supp. 1056 (D.C. D.C. 1976).

This is still the definition for prevailing party contained in the most

current edition of Blacks Law Dictionary, (rev. 5th ed. 1979).

To be such [a prevailing party] does not depend upon

the degree of success at different stages of the suit, but

whether, at the end of the suit, or other proceeding, the

party who has made a claim against the other, had suc-

cessfully maintained it.” [citations omitted].

Parker, 411 F.Supp. at 1063.

The district court then concluded that to be a “prevailing

party” within the meaning of 42 U.S.C. 2000e-5(k) does not

require the securing of a judgment after trial and fees may

be awarded when there has been a settlement. The court

stated that “prevailing party” status must be determined by:

a close scrutiny of the totality of the circumstances

surrounding the settlement, focusing particularly on the

necessity for bringing the action and whether the party

is the successful party with respect to the central issue

— discrimination. (emphasis added).

Parker, 411 F.Supp. at 1064.

The only issue decided on the appeal of the Parker case

was that attorney's fees could be awarded for the prelimi.

nary administrative hearing. In the circuit court's Appendix

on Legislative History it noted that the lower court decision

in Parker had been cited by H.R. Rep. No. 94-1558 for the

proposition that the phrase “prevailing party” was not lim-

ited to awards only after entry of a final judgment following

a full trial on the merits. The circuit court still felt it should

rely on the lower court decision in regard to the issue on

appeal and stated:

Although this passage [H.R. Rep. No. 94-1558] does not

cite the lower court decision for the precise point in

question here, we doubt that the decision would have

been cited despite disagreement with a major issue in

the case, i.e., whether attorney's fees can be awarded for

services rendered in the administrative proceedings —

an issue which was obviously relevant to the subject of

the report.

Parker, 561 F.2d at 320.

Likewise, H.R. Rep. No. 94-1558 surely would not have

cited Parker if it disagreed with the central issue analysis for

prevailing party status.

The stated purpose of the Civil Rights Attorney's Fees

Awards Act is to ensure that reasonable fees are awarded to

attract competent counsel in cases involving civil and con-

stitutional rights, “but which do not produce windfalls to

attorneys”. S. Rep. No. 94-1011, 94th Cong., 2d Session

(1976), U.S. Code Cong. & Administrative News 1976, p.

5913. This is a delicate balance which does require stan-

dards to be met in order to avoid windfalls to attorneys. The

Fifth Circuit's central issue test requires a nexus between

the claim as brought and the results achieved, thus prevent-

ing suits which are merely witch-hunts or fishing expedi-

tions for constitutional violations. If no such relationship is

required, then there is nothing to prevent the filing of

groundless suits in order to search for any constitutional

violation during discovery, whether related to the initial suit

or not. Should a violation be found, the plaintiff can then

become the prevailing party and recover attorney fees rather

than pay them for the initial frivolous suit.

Concern over potential manipulation of claims for pur-

poses of achieving attorney fees was voiced by Justice Pow-

ell in his dissent to the decision in Maine v. Thiboutot,*

448 U.S. 1, 100 S.Ct. 2502 (1980), where he stated:

There is some evidence that §1983 claims already are

being appended to complaints solely for the purpose of

obtaining fees in actions where “civil rights” of any kind

are at best an afterthought. In this case, for example,

*Thiboutot extended Sec. 1983 coverage to claims arising under the US.

laws as well as the U.S. Constitution; specifically involved was the Social

Security Act.

the respondents added a $1983 count to their complaint

some years after the action was initiated, apparently in

response to the enactment of the Civil Rights Attor-

neys Fees Awards Act of 1976....Consequently, inge

nious pleaders may find ways to recover attorney's fees

in almost any suit against a state defendant.

Maine, 448 U.S. at 22, 100 S.Ct. at 2514.

This is not the intent of the Act. It was designed to

remove financial barriers to meritorious lawsuits rather

than to spawn general civil rights litigation. This is evi-

denced by the Congressional mandate to not authorize fee

awards to all civil rights plaintiffs but only to “prevailing”

plaintiffs. Congress must have considered that easy accessi-

bility to attorney s fees could have the negative impact of

forcing overly generous settlements solely to avoid the

impact of being assessed attorney fees that exceed the value

of the issue litigated.

It is obvious that in the present case the Petitioners did

not know that some of the GISD administrators held

offending interpretations of Administrative Regulation 412.

This had never been an issue and there was no pre-existing

factual basis for a suit on these claims. Only through hap-

penstance during discovery did this issue surface and even

though Petitioners succeeded on this issue, they did not

bring about any change in the schools’ practices or proce-

dures since the offending interpretation of Administrative

Regulation 412 was never enforced nor were there any plans

to so enforce it.

Sound judicial policy and legislative intent support the

Fifth Circuit central issue standard to determine who is a

prevailing party and the Fifth Circuit application of that

standard to the present case.

III. ALL CIRCUITS REQUIRE A NEXUS BETWEEN

THE RELIEF SOUGHT AND THE RESULTS

ACHIEVED.

All of the circuits agree that in order to be a prevailing

party and recover attorney's fees, there must be some degree

of success on the issues or reasons involved in bringing

the suit. The degree of success required varies between

—

The First Circuit standard adopted in Nadeau v. Helge

moe, 581 F.2d 275, 278 (ist Cir. 1978) requires “success on

any significant issue in litigation which achieves some of the

benefit the parties sought in bringing suit”. This standard

has been adopted verbatim by the Second, Fourth, Sixth,

Seventh, Eighth, Ninth and Tenth Circuits. Gingras v.

Lloyd, 740 F.2d 210, 212 (2nd Cir. 1984); Bonnes v. Long, 599

F.2d 1316, 1318 (4th Cir. 1979); Kreimes vu Department of

Treasury, 764 F.2d 1186, 1188 (6th Cir. 1985); Busche t Bur-

kee, 649 F.2d 509, 521 (7th Cir.), cert. denied, 454 U.S. 897

(1981); Fast v. School District of Ladue, 728 F.2d 1030, 1032

(8th Cir. 1984) (en banc); Lummi Indian Tribe v. Oltman,

720 F.2d 1124, 1125 (9th Cir. 1983); In re Kansas Congres-

sional Districts Reapportionment Cases, O'’Sulliwan v. Brier.

745 F.2d 610, 612 (10th Cir. 1984).

party achieve “some of the benefit sought” by bringing the

suit. /nstitutionalized Juveniles v. Secretary of Public Wel.

fare, 758 F.2d 897, 910 (3rd Cir. 1985). The Federal Circuit

requires that a prevailing party has “substantially prevailed

in its position Austin v. Department of Commerce, 742 F.2d

1417, 1419 (Fed. Cir. 1984). The District of Columbia Circuit

requires that the Plaintiff must have “substantially received

the relief sought”. Miller v. Staats, 706 F.2d 336, 341 (D.C.

Cir. 1983). The Fifth Circuit requires that the Plaintiff

prevail on the “central issue by acquicing the primary relief

sought”. Simien v. City of San Antonio, 809 F.2d 255, 258

(5th Cir. 1987). Finally, the Eleventh Circuit states that the

prevailing party test is “whether he or she has received sub-

stantially the relief requested or has been successful on the

central issue”. Martin v. Heckler, 773 F.2d 1145, 1149 (11th

Cir. 1985).

The variance between the different circuit requirements

is not as “sharp” as Petitioners allege. Regardless of

the degree of success required, whether “significant”,

“substantial”, or “central”, all of the circuits require a nexus

between the relief obtained and the relief which the Plaintiff

was seeking. Petitioners cannot esteblish this necessary

relationship between what they sought and what they

achieved and would not be a prevailing party in ary of

the circuits.

The Fourth Circuit (which has adopted the Nadeau stan-

dard) gave some guidance to a prevailing party analysis

by stating:

its initial focus might well be on establishing the precise

factual /legal condition that the fee claimant has sought

to change or affect so as to gain a benefit or be relieved

of a burden. With this condition taken as a benchmark,

inquiry may then turn to whether as a quite practical

matter the outcome, in whatever form it is realized,

is one to which the plaintiff fee claimant's efforts

contributed in a significant way, and which does involve

an actual conferral of benefit or relief from burden

when measured against the benchmark condition.

(emphasis added).

Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979).

Application of that analysis to the present case would

establish union access to the school, teachers, and mail

system as the benchmark and the relief obtained would

measure zero against the benchmark.

The Third Circuit analysis is derived from the Bonnes

To apply the prevailing party standard, it is important

first to identify the relief plaintiff sought and, in relevant

cases, the legal theories on which the relief was based.

Usually a commonsense i between relief

sought and relief obtained will be sufficient to indicate

whether a party has prevailed. (emphasis added).

Institutionalized Juveniles v. Secretary of Public Welfare, 758

F.2d 897, 911 (3rd Cir. 1985).

When viewed on the basis of the foregoing analytical

approaches rather than the adopted labels of “substantial”

or “significant”, the Fifth Circuit “central issue” test requir-

ing a Plaintiff to achieve the primary relief sought is really

the same. The Fifth Circuit panel in this case correctly ana-

lyzed the case and held that Petitioners were not prevailing

parties because they did not achieve access to GISD cam-

puses. Their suit did not involve teacher communications.

Try as hard as Petitioners will to establish that this was

intended by their suit, they were not able to convince the

district court or the court of appeals of this. Only through

happenstance in discovery did Petitioners even become

aware of this possible interpretation of Administrative Reg-

ulation 412. Petitioners lost on all issues which prompted

this litigation. Prevailing party status in the Attorney's Fees

Awards Act was intended to compensate a meritorrsus suit

not to turn losing Plaintiffs into attorney's fees victors.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied

Respectfully submitted,

LAW Orrices,or EArt Luna, P.

0 / /

— — jf A

Cy *

Ky at Pict tte

FAR lL N\A Counsel of Record

Mary MILFORD

STEVEN M Dow

4411 N. Central Expressway

Dallas, Texas 75205

(214) 521-600)

Attorneys for Respondents

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CA 3-81-0412-R

TEXAS STATE TEACHERS ASSOCIATION, GARLAND EDUCATION

ASSOCIATION, JOE ATKINS AND JANICE HILL,

Plaintiffs,

GARLAND INDEPENDENT SCHOOL DISTRICT, THE BOARD OF

TRUSTEES OF THE GARLAND INDEPENDENT SCHOOL DISTRICT,

HARRIS HILL, R. E. Dopson, DARWIN Morris,

LONALD SENTER, CASH BIRDWELL, JIM BURNS, JIM KENNEDY,

in their official capacities as Trustees thereof,

and Ex! DOUGLAS, in his official capcity as Superintendent

of the Garland Independent School District,

Defendants.

COMPLAINT AND JURY DEMAND

TO THE HONORABLE JUDGE OF SAID CO

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