# Record and brief — Texas Teachers Assn. v. Garland School Dist. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1395%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 782 ## Text a No. 87-1759-CFX Status: GRANTED Docketed: April 25, 1988 1 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, V. 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 r ——— 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) 12 iv 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 1a 16a 21a — ——ͥ ͤ — . „ —— KU—U— 4s —[T— , . — — 2 — öüU eee V 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 4 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) vi 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, v. 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. I t i : ‘ | a3 : : | rE : Ei . i 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. 4 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 i 2 : i : = x r 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 7 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 11 tH 1 2 : - 2 i; + 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 I en 1 i a tale si 1 f i 1 i ; 5 f f f f tf t ; . ! i i Ht [ ; | | i? 25 f 17 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”) 10 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 i f 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 11 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 b 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. 12 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“). 13 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. 14 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. 15 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)”). TEL li Hit iti 111 nit HL LL Etz Aigle! e b 135 15 Zan 33° 12275 1 15 1 1 plat e Hn f lis 10 415 1 a 70111 Et Ii Ae tii 15 it HAUTE 33 Hild 1 1151 1 5 1 1 i 1115 inl: Ei 323512282 1715 ait 11 Plats 11211155 il 1 Tet All 111 . Fifth Circuit's 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 18 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). + a 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 la APPENDIX A UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 87-1221 Texas STATE TEACHERS ASSOCIATION, et al., Plaintiffs-Appellants, V. 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 i i i 1 i b i ef 1 i 171 F 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 i i i Hi 7 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. 3a 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. 4a 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. 5a 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 6a 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. 7a 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. 7 0 ö 7 21 LE 0 1 thier ; 8 * 2 181 0 2 Bi i ; 0 nie : 117110 1711 An ann 121 8 b i LE 1 i fi 10a 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. i 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- Ut 2 TR 125814 1771 f 111 1 hil hid AL 1 r : 5 | 1115 intial its 1 : 15 ily: 1 ct eis za 1101 i ; fa h . ik 55 8 ait 111 BEES i al Hill iu l4a es a 121441 + 1101 10 Bt 11 a th: 11115 e iat tli te 111 11 F 8 i 55 Zs 1 1 251. rr i 1112115 a 1525 7 HH aii : Hi SULLA | l =| 14571 : 11221125 1 fins BRN ne e l tit HSH Ii i l6a 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, vo 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 8 i 5 tet 15 i 3 Be . 2 1 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 li EEL 0 Mag i e iit 1 ; + 7 te 0 ial ue te yg li ie, i Hille Ihe bee ally fi ö e 118 ‘i 1 0 u ESTE 3 42 1171 172167 1111171. ard i li 5 all; te ale 111 15 abel | i ee i 145 i Helle ba, 176% ee e 1 1 i ee 1 1 2 i ves 2155 H inh 7H 125 411 f n 212 11117 1481111 112181775 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: OO 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, V. 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 if 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 ¢ 1 | : 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 te 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 i i : 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: ? : af 4 f i : I ; i | | + 7 1 ri 41 5 5 7 : F i f 3 i - : 3 = 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. 110 111125 i Ady ah a i yl 111 : iss ltd 43177285 J. fi 271111 RI lth Ae 11 . 111 int beds Ht 1 11 Her 11 ple! 11411, + N Hf { ey i 1111 i 75 1 HL i 1 e i in Wea pe 11 . Hae 11711115 15 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1395%3A0. Public record. Not legal advice.