Opposition Brief — Marjorie H. Rowland v. Mad River Local School District, Montgomery County, Ohio

- Su Court, U.S.

| FILED

Y DEC Ge 1904

84-532 Sa

a ETE OID

IN THE

Supreme Court Of The Anited States

OcTOBER TERM, 1984

MARJORIE H. ROWLAND

Petitioner,

vs.

MAD RIVER LOCAL SCHOOL DISTRICT,

MONTGOMERY COUNTY, OHIO

A PUBLIC BODY CORPORATE

Respondent.

On Petition For A Writ Of Certiorari To The

United States Court of Appeals

For the Sixth Circuit

BRIEF OF RESPONDENT IN

OPPOSITION

MICHAEL J. BURDGE

Young, Pryor, Lynn &

Jerardi

1400 First National Plaza

P.O. Box 910

Dayton, Ohio 45402

(513) 224-1981

Attorney for Respondent

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

i

I. QUESTIONS PRESENTED

. Whether the Decision Of The Court of Appeals Con-

flicts With Applicable Decisions Of This Court Re-

garding Whether Petitioner's Speech Involved Mat-

ters Of Public Concern

. Whether the Decision Of The Court Of Appeals Con-

flicts With Applicable Decisions Of This Court Re-

garding Whether Respondent’s Employees Violated

Petitioner’s Right To Equal Protection

. Whether the Decision Of The Sixth Circuit Conflicts

With Applicable Decisions Of This Court Regarding

The “But For” Standard of Mt. Healthy v. Doyle

. Whether the Sixth Circuit Decision Conflicts With

Applicable Decisions Of This Court, Or Decisions Of

Other Federal Courts Of Appeal, Regarding The Lia-

bility of Government Employers For Unconstitutional

Acts Committed By Key Decision Makers Who Were

In The Process of Carrying Out Official Policies

IIL.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............. I

TABLE OF AUTHORITIES ............. iv

STATEMENT OF THE CASE ........... l

ARGURBIE ccc vecdsccseesesscecccesece 5

A. The Decision Of The Court of Appeals Does

Not Conflict With Applicable Decisions Of

This Court Regarding Whether Petitioner's

Speech Involved Matters of Public

COMGOTT ox o050600508kedee pawesaalaes

B. The Decision Of The Court Of Appeals Does

Not Conflict With Applicable Decisions Of

This Court Regarding Whether Respon-

dent’s Employees Violated Petitioner's

Right To Equal Protection .............

1. The decision of the Sixth Circuit did not

fail to apply the “clearly erroneous” rule

in determining that Petitioner was not

treated differently than similarly situated

errr rrr rrr rr rT cris rr

2. The decision of the Sixth Circuit does not

involve the ability of a party to prove dis-

criminatory motive by direct evidence,

and therefore certiorari should not be

ted on an issue not passed upon by

the Court Bebe... ccccceccscncacess

3. The Sixth Circuit, in its decision below,

did not pass upon the issue of whether or

not homosexuals/bisexuals are protected

by the equal protection provisions of the

ourteenth Amendment, and therefore

certiorari should not be granted for such

Oth CT. sano vs nacqevsasees¥eues ences

C. The Decision Of The Sixth Circuit Does Not

Conflict With Applicable Decisions Of This

Court Regarding The “But For” Standard

Of Mt. Healthy v. Doyle ............05.

11

12

iii

Table of Contents Continued

Page

D. The Sixth Circuit Decision Does Not Con-

flict With Applicable Decisions Of This

Court, Or Decisions Of Other Federal

Courts Of Appeal, Regarding The Liability

Of Government Employers For Unconstitu-

tional Acts Committed B Key Decision

Makers Who Were In The Process of Carry

ing; Out Official Policies ...............° 15

i I te a oi circ aks 0c ik. fee oe. 19

iv

TABLE OF AUTHORITIES

CASE Page

Baker v. Nelson, 291 Minn. 310, 191 N.W. 2d 185

(1972) appeal dismissed for want of a substan-

tial federal question, 409 U.S. 810........... 13

Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) ......... 18

Connick v. Myers, ___. U.S. —__, 103 S. Ct. 1684

RR ee aren rrr rere 5,6,7,8

Dandridge v. Wiliiams, 397 U.S. 471 (1970) reh.

Se EE I I ad boss keds cSuevaeusess << 14

Doe v. Commonwealth’s Atty., 403 F. Supp. 1199,

(E.D. Va. 1975), aff'd 5 U. S. 901 1976),

Ss Ge tn I oben sinc cceesecn ccc. 13

Gilmer v. City of Atlanta, 737 F.2d 894 (11th Cir.

Ge hao i anes 6 oak ee ks cin ensannce 16,19

Givhan v. Western Line Consolidated School

District, 489 U.S. 410 (1979) ................ 5,7

Key v. Rutherford, 645 F.2d 880 (10th Cir. 1981)... 18

Kingsviile ee ore School District v. Ciesin,

ibs Bio fy te 2. eee rere 18

Magayanes v. City of Chicago, 496 F. Supp. 812

es Se MGs Sa betes 6 n0hc00500000060<. 16

Monnell v. New York City Department of Social

Services, 436 U.S. 638 ae 16,17,18

Mt. Healthy City School District, Board of

Education v. Doyle, 429 U. S. 274 (1977) . . 5,14,15

Owen v. City of Independence, Mo., 445 U.S. 622

(1

ME San Tu dheanure vi cubes 6 icetcks sab 16,17,18

Perry v. Sinderman, 408 U.S. 593 (1972) .......... 5

Pickering v. Board of Education, 391 U. S. 563

Sth addi des hennewees sdaobusesces 5,6

Poe v. Uliman, 367 U.S. 497 (1961) .............. 14

Rowland V. Mad River Local School District, 730

F.2d 44 (6th Cir. 1984) ................ 6,9,11,14

Vv

Table of Authorities Continued

CaSESs: Page

Universal Amusement Co. v. Hofheinz, 646 F.2d

996 (Sth Cir. 1981) ....... ccc eee cece eens 18

Williams v. City of Voldosta, 689 F.2d 964, (11th

+S eRe rs re 19

Il. STATEMENT OF THE CASE

Plaintiff-Petitioner, Rowland (hereinafter “Petitio-

ner”), began working for Defendant-Respondent, Mad

River Local School District, Board of Education (here-

inafter “Respondent”) as a guidance counselor in the vo-

cational education department at Stebbins High School in

Dayton, Ohio, in August, 1974, (Tr. II, 289). Petitioner

was employed under a one year limited contract that

would expire at the end of the school year (Tr. II, 476-477).

Petitioner's office was located within the vocational educa-

tion department and Petitioner jointly shared with other

staff members of the department a secretary by the name

of Elaine Monell (Tr. II, 308; Tr. III, 381).

In October or November, 1974, Petitioner had a discus-

sion with Monell wherein Petitioner named one of her

student counselees as being gay (Tr. II, 314, 320; Tr. III,

406-410). On November 26, 1974, Monell was working at

her desk, typing, when Petitioner approached her and

toid her that she was bisexual and had a female lover.

Petitioner also identified by name a second student coun-

selee who was homosexual. Monell was upset, did not

want to be confronted with that information, and, accord-

ing to Petitioner, Monell became cold and distant. Monell

told the department supervisor about her conversation

with Petitioner. On the following day, Monell talked with

the school principal, Defendant, DiNino, about the same

situation (Tr. II, 176, 409-411, 419; Tr. III, 390-391,

490-492; Tr. IV, 132).

During this same time period, and in the vocational

education office, Petitioner had a confrontation with a

parent and student counselee because Petitioner had told

the student it was okay to be gay. The parent was upset

with Petitioner and told Petitioner that it was not okay,

2

that it was wrong, against the bible, and asked Petitioner

why she told the student that it was okay (Tr. II, 321,

328-330, 495-496, 507-508). In addition, Petitioner told the

assistant principal of the school, Goheen, and several

teachers who were personal friends that she was bisexual.

In December, Petitioner had a meeting with DiNino,

and he suggested that she resign. Petitioner refused to

resign, and then told several other Stebbins teachers that

she had been asked to resign because she was bisexual,

and Petitioner solicited their support (Tr. II, 338-350).

DiNino then reported his conversations with Petitioner

to Defendant, Hopper, the local school district superin-

tendent. Shortly thereafter, Hopper informed some

members of the Respondent simply that Hopper had

some type of problem in the high school and would have to

take some action or discipline a faculty member. Hopper

did not say that he was going to suspend or remove the

faculty member (Tr. II, 69, 89-98, 210, 222-223; Tr. III,

5-6, 566-571). A few days later, Petitioner, with her attor-

ney, met with DiNino, Hopper, and the School District's

attorney, and again Petitioner refused to resign. There-

upon, at the decision of Hopper, Petitioner was suspended

with full pay for the remainder of her contract (Tr. II,

72-74, 109-112, 143-144, 342-344).

Petitioner then filed the first of two actions in District

Court. The District Court entered a preliminary injunc-

tion against the suspension and thereafter, Hopper reas-

signed Petitioner to a position involving development of a

career education curriculum. This was a position with no

student contact (Tr. II, 184-185, 223 ; Tr. III, 642-643). As

was the case with the suspension, the decision to transfer

Petitioner was made by Hopper. That is, the members of

the Respondent Board of Education were informed by

3

Hopper of the transfer after it was an accomplished fact;

Hopper gave the members of the Board no reason for the

transfer other than that it was his right, authority and

prerogative; and the Respondent Board took no action

whatsoever (Tr. II, 98, 227; Tr. III, 9-13, 643).

In March, 1975, DiNino recommended to Hopper that

the contract of Petitioner, along with the contract of sev-

eral other Stebbins teachers not be renewed. The local

superintendent, Hopper, concurred, and, in turn, recom-

mended to the county superintendent, Crim (who was not

made a party to any action), that Petitioner's contract,

and the contracts of several other Stebbins teachers, not

be renewed. Petitioner was informed of the recommenda-

tion and, at a regular meeting of the school board, the

Respondent, Board of Education, received from Crim and

Hopper a recommendation to not renew the contracts of

several Stebbins teachers, including the contract of Peti-

tioner, and no reasons for the recommendation were

given. At that meeting of the Respondent, Board of Edu-

cation, the recommendation to not renew the contracts of

employment was unanimously adopted without indepen-

dent investigation (Tr. II, 96-97, 208, 217, 220; Tr. III,

13-14, 516, 589, 645-646).

Petitioner filed a second action in the District Court

charging that the reassignment and failure to renew her

contract violated a number of constitutional rights. The

Defendants in both actions were the Respondent, Board

of Education, the president and members of the Board,

the local superintendent of the school district, and the

principal of Stebbins High School. A jury trial was con-

ducted by a U.S. Magistrate, but the jury’s role was

limited to responding to special verdict questions submit-

ted to it by the Magistrate. In Special Verdicts I, II and

III, the jury found that Petitioner's statement to Monell

4

that she was bisexual and had a female lover and Peti-

tioner’s statements to Goheen and fellow teachers regard-

ing her bisexuality, did not interfere with the proper

performance of Pet.tioner’s duties, Monell’s duties, the

teachers duties, or with the regular operation of the

school generally (A-22a-27a). In Special Verdict V, the

jury found that Hopper and DiNino treated Petitioner

differently than simiiarly situated employees because Pe-

titioner was homosexual/bisexual; however, the Respon-

dent, Board of Education, did not treat Petitioner differ-

ently (A-28a). In Special Verdict VII, the jury found that

the Respondent, Board of Education, when it voted to

non-renew Petitioner’s contract, did not act for any reason

other than the recommendation of Hopper (A-3la). In

Special Verdict V, the jury also found that Petitioner was

not performing her job in a satisfactory manner at the

time of her suspension because she revealed the sexual

orientation of two students when it was not necessary to

do so (A-29a, 32a).

On the basis of the jury’s answers to the Special Ver-

dicts, the Magistrate dismissed all defendants from the

action except Respondent, Board of Education. The Mag-

istrate entered orders finding the Respondent, Board,

liable for violations of Petitioner’s rights of free speech

and equal protection under the United States Constitu-

tion and judgment was entered in the amount of $55,-

973.14. Although Petitioner had requested reinstatement

and the expungement of the Respondent's records regard-

ing numerous deficiencies and complaints about Peti-

tioner’s job performance (in addition to the disclosure of

the sexual orientation of two students), the Magistrate

refused to order such relief. The Magistrate found that

the evidence introduced at trial substantiated the accura-

cy of the Respondent’s records and further established

5

that Petitioner was unwilling to follow the policies and

directives of school administrators. (Order regarding

Plaintiffs request for prejudgment interest, etc., p. 6-7,

R. 82).

Ill. ARGUMENT

A. The Decision Of The Court Of Appeals Does Not

Conflict With Applicable Decisions Of This Court

Regarding Whether Petitioner’s Speech Involved

Matters Of Public Concern

While Petitioner did, in fact, do some speaking to Mon-

ell, Goheen, and other employees at Stebbins High

School, Petitioner’s speaking was not the type of speech

contemplated by Connick v. Myers, ___ U.S. —__, 108

S.Ct. 1684 (1983); Givhan v. Western Line Consolidated

School District, 489 U.S. 410 (1979); Mt. Healthy City

School District, Board of Education v. Doyle, 429 U.S.

274 (1977); Perry v. Sinderman, 408 U.S. 593 (1972); and

Pickering v. Board of Education, 391 U.S. 563 (1968). In

Givhan, supra, at 414, this Court approvingly discussed

Pickering, supra, and noted the standard to be applied in

evaluating the speech of a public employee:

“In determining whether a government employee’s

— is constitutionally protected, the interests of

the [employee], as a citizen, in commenting upon

matters of public concern must be balanced against

the interests of the state, as an employer, in promot-

ing the efficiency of the public services it performs

through its employees.”

All of the above cases involved comments being made

upon public issues and matters of public concern—not

comments upon matters which were entirely personal to

the speaker and not at all relevant to any matter of public

6

concern or controversy and not at all relevant to any

educational purpose.

In Connick v. Myers, supra, this Court discussed the

importance of first determining whether or not the

speech involved matters of public concern. The opinion in

Connick v. Myers, supra, at 1689 noted that, if a public

employee’s statements cannot be fairly characterized as

constituting speech on a matter of public concern, then it

is unnecessary for the courts to scrutinize the reasons for

discharge. Thus, if the “speech” does not involve matters

of public concern, there is no need to engage in a Picker-

ing type of analysis. The essence of the Court’s holding

appears at 1690 of the opinion:

“We hold only that when a public employee speaks

not as a citizen upon matters of public concern, but

instead as an employee upon matters only of personal

interest, absent the most unusual circumstances, a

federal court is not the appropriate forum in which to

review the wisdom of a personnel decision taken by a

cand <l allegedly in reaction to the employee's

avior.”

Furthermore, this Court’s opinion in Connick, at 1690,

specifically set forth the criteria to be used by the courts

in determining the public or private nature of an employ-

ee’s speech:

“Whether an employee’s speech addresses a matter of

ublic concern must be determined by the content,

orm and context of a given statement as revealed by

the whole record.”

An examination of the opinion of the Sixth Circuit in the

case at bar, Rowland v. Mad River Local School District,

730 F.2d 444, at 449 (6th Circuit, 1984), demonstrates

that, in fact, the Connick criteria was followed and the

7

Sixth Circuit determined that Petitioner’s statements did

not address matters of public concern. As noted by the

Sixth Circuit, Petitioner’s speech involved only her own

personal interests and there was no evidence of any public

concern in the community or at Stebbins High School

regarding the issue of bisexuality among school personnel

when Petitioner began speaking to others about her own

sexual preferences.

While Petitioner now claims that the Sixth Circuit’s

analysis is incorrect and that her speech did involve a

matter of public concern, even the Magistrate at the trial

level indicated otherwise. At the trial level, the Magis-

trate ruled from the bench regarding liability on the First

Amendment and found as follows:

“In this case, we don’t have the advocacy of ideas in a

public forum. We have the private statement of per-

sonal feelings by one individual to another in the

employment setting.” (Tr. IV, 422-423).

At page 6 of her Petition, Petitioner argues that the

Sixth Circuit ignored this Court’s decision in Givhan v.

Western Line Consolidated School District , supra, as

distinguished by this Court in Connick, supra, at 1691,

n.8. However, Petitioner’s reference to the footnote in

Connick does not assist her cause. As noted in that foot-

note, Givhan was a case where an employee was speaking

out on matters of general concern, not on matters regard-

ing a personal employment dispute. Furthermore, to par-

aphrase and adapt portions of that footnote to this case, it

can be said that Petitioner's statements not otherwise of

public concern do not attain that status because the sub-

ject matter could, in different circumstances, have been

the topic of a communication to the public that might be of

general interest. Petitioner’s analysis of whether her

statements if characterized as protests, etc., could be

8

matters of public concern is beside the point—it does not

answer whether the statements involved in this particular

case constituted such speech. Contrary to the contentions

of Petitioner, her statements were not aimed at social and

legal change—rather they were simply aimed at various

school employees with the hope that the conversations

would remain confidential (hardly a method to initiate

social and legal change).

The essence of Petitioner’s argument regarding

whether her statements constituted speech involving a

matter of public concern is found at pages 10 and 11 of the

Petition. Therein, Petitioner asserts that this Court

should grant certiorari in order to provide guidelines on

what constitutes matters of public concern. However, this

Court has already set forth those guidelines—they are

contained within the Connick opinion at 1689-1690. Cer-

tainly, this is not an issue which deserves further elucida-

tion by this Court. Petitioner does not complain that the

Sixth Circuit applied the wrong test; Petitioner merely

complains that the application of that test to the facts of

this case result in a determination that Petitioner's state-

ments do not happen to constitute speech involving mat-

ters of public concern. Such contention should not form

the basis for granting a writ of certiorari.

B. The Decision Of The Court Of Appeals Does Not

Conflict With Applicable Decisions Of This Court

Regarding Whether Respondent’s Employees Vio-

lated Petitioner’s Right To Equal Protection

1. The decision of the Sixth Circuit did not fail to apply

the “clearly erroneous” rule in determining that Peti-

tioner was not treated differently than similarly situ-

ated employees.

At trial, the Magistrate correctly observed that there

was absolutely no evidence in the record to support an

equal protection claim (Tr. III, 620), and that there was

9

absolutely no evidence of any similarly situated employ-

ees having a work record comparable to that of the Peti-

tioner (Tr. IV, 352-353). It is a fact that one can search in

vain for any evidence in the record in this case regarding

any employee who had a work record comparable to that

of the Petitioner. Thus, it was improper for the Magistrate

to submit such issue to the jury for speculation.

The Sixth Circuit, having the entire record before it,

agreed with the Magistrate's analysis regarding the lack

of evidence. The Sixth Circuit in Rowland v. Mad River

Local School District, supra, at 450 correctly observed

that, at trial, the Magistrate “required the jury to make

findings on an issue which he recognized as having been

the subject of no proof. This was plain error. Since Plain-

tiff failed to produce any proof that she was treated differ-

ently from other similarly situated employees, there was

nothing to submit to the jury on this issue.”

Petitioner, at page 15 of the Petition, argues that the

Sixth Circuit could not have applied the “clearly er-

roneous” standard and at the same time concluded that

there was no appropriate evidence on the issue because

the transcript is replete with testimony regarding the

concerns of Hopper and DiNino regarding Petitioner's

homosexuality. Petitioner, in her brief, then proceeds to

refer the Court to various portions in the transcript

where her homosexuality was discussed.

Nevertheless, that does not supply the evidence which

the Magistrate and the Sixth Circuit found lacking. For

example, the references to the transcript made by Peti-

tioner in her brief are taken out of context and certainly

cannot be considered a representation of “the totality of

the evidence” for purposes of the clearly erroneous rule.

In fact, the totality of the evidence indicates that the

concerns regarding Petitioner's homosexuality were al-

10

ways in conjunction with Petitioner’s numerous job defi-

ciencies. For example, the evidence in the case at bar

established that Petitioner had received several oral and

written reprimands from the vocational education depart-

ment supervisor regarding numerous shortcomings and

deficiencies in Petitioner’s performance—most of which

took place before anyone had knowledge that Petitioner

was bisexual/homosexual (Tr. III, 352-377; Ex. C.). As

noted above, the Magistrate, after finding Respondent,

Board of Education, liable to Petitioner fer constitutional

violations, nevertheless declined to expunge the Respon-

dent’s records regarding the numerous deficiencies and

shortcomings in Petitioner’s job performance because

those records were, in fact, supported by the evidence at

trial. In addition, of course, the jury indicated that Peti-

tioner was not performing her job in a satisfactory man-

ner in that she had breached her obligation of confiden-

tiality toward her student counselees. Petitioner herself

recognized that her student counselees deserved an abso-

lutely confidential situation (Tr. II, 299-300). Indeed, her

position as guidance counselor was such that the mainte-

nance of confidentiality was absolutely crucial to her util-

ity, future functioning, and effectiveness (Tr. III, 200,

219). Certainly, an examination of the record in this case

clearly demonstrates that there was absolutely no evi-

dence of any employee “similarly situated” to Plaintiff

regarding job performance.

It is particularly significant to note that the Magistrate,

at trial, observed:

“I think that in order to _ discrimination, the

Plaintiff has to prove that she was performing her job

properly and then was fired or action was taken for no

apparent legitimate reason.

If you fail to prove that you are performing your job

properly, I don’t think you have made a prima facie

ease of discrimination.” (Tr. IV, 208).

11

There can be no doubt that Petitioner did not perform her

job properly. Such was the finding of the jury and the

Magistrate.

Petitioner’s arguments would lead one to believe that

the decision of the Sixth Circuit regarding the discrimina-

tion issue in this case was an aberration. However, that is

not the case. The Sixth Circuit accurately summarized

Petitioner's evidence on her equal protection claim, as

well as the basis for its holding as follows:

“{As] we have pointed out, the Plaintiff sought to

prevail on her equal protection claim without any

showing that heterosexual school employees in situa-

tions similar to hers have been, or would be, treated

differently for making their personal sexual prefer-

ences the topic of comment and discussion in the high

school community. Again, this is nothing more than

the required anal sis of an equal protection claim.”

Rowland v. Mad River Local §

chool District, supra,

at 451-452.

2. The decision of the Sixth Circuit does not involve the

ability of a party to prove discriminatory motive by

direct evidence, and therefore certiorari should not

be granted on an issue not passed upon by the Court

below.

In light of the foregoing, Petitioner’s arguments re-

garding direct evidence of discriminatory motive (see Pe-

tition, pages 16-19) are simply irrelevant. For example,

assuming arguendo discriminatory motive can be estab-

lished by direct evidence, as well as circumstantial evi-

dence, that does not necessarily establish that discrimina-

tion did in fact take place. An employer might have all the

desire in the world to engage in discrimination, but if in

actuality all his employees are paid the same and other-

wise subjected to the same working conditions, no claim

of discrimination can be maintained.

12

The foregoing demonstrates the essential failure of Pe-

titioner’s argument on this issue: case precedents which

set forth a method of proving discriminatory motive mere-

ly set forth a method of proving one element of a discrimi-

nation case, i.e. motive; however, proof of discriminatory

motive does not prove an entire case of discrimination.

Thus, the Court should refrain from granting certiorari in

order to “reaffirm” a doctrine that discriminatory motive

can be established by direct as well as circumstantial

evidence.

Most Certainly, this Court should refrain from grant-

ing certiorari to “reaffirm” a doctrine that discriminatory

motive can be proved by direct evidence when the Sixth

Circuit has done nothing to impair such a doctrine.

3. The Sixth Circuit, in its decision below, did not pass

upon the issue of whether or not homosexuals/bisex-

uals are protected by the equal protection provisions

of the Fourteenth Amendment, and therefore cer-

tiorari should not be granted for such an issue.

Similarly, it is respectfully submitted that this Court

should not grant certiorari simply in order to decide

whether or not homosexuals/bisexuals are protected by

the equal protection provisions of the Fourteenth Amend-

ment. The opinion of the Sixth Circuit in this case has not

ruled on whether or not homosexuals/bisexuals are pro-

tected by the equal protection provisions of the Four-

teenth Amendment. Thus, there is really nothing for this.

Court to review on that issue. In fact, it is somewhat

surprising that Petitioner wishes the Court to grant cer-

tiorari on this issue when, in her brief before the Sixth

Circuit, Petitioner repeatedly stated that the evidence

established that the suspension, reassignment and non-

renewal were caused by Petitioner's speech and not her

13

sexual preference, and indicated that the Sixth Circuit

need not address the issue of whether or not sexual pref-

erence is constitutionally protected:

“(Pjiaintiffs exercise of her right to free speech in

[the circumstances of this case] cannot, consistent

with the First Amendment, be the basis for [the

school board's] actions. As plaintiffs speech was in

fact the only reason for those actions, plaintiff is

entitled to an affirmance of the District Court's judg-

ment.

***The simple fact is that, as school officials unani-

mously testified below, [the school board's] actions

were caused by plaintiffs speech and not by her sexu-

al preference.” (Brief of Plaintiff-Appellee, page 22,

as filed with the Sixth Circuit).

“Appellant, [the school board] in the district court,

expressly disavowed plaintiffs sexual preference as a

basis for its actions. ***There is therefore no reason

for this Court to consider the purely hypothetical

question of whether Appellant could have sus-

pended, transferred or refused to renew Plaintiff

purely because of her sexual preference.” Id, p. 44.

Furthermore, Petitioner should not be permitted to

assert that homosexuality is included within the right of

privacy when, as the Sixth Circuit noted below, the case

was submitted at trial on claims of free speech, equal

protection, and access to the courts. Certainly, Petitioner

should not be permitted to raise a new theory for the first

time in this Court.

Finally, it is respectfully submitted that this Court has,

by its previous rulings, provided sufficient direction re-

garding homosexual rights and the equal protection

clause. E.g. Doe v. Commonwealth's Atty., 403 F. Supp.

1199 (E.D. Va. 1975), aff'd 425 U.S. 901 (1976), reh.den.

425 U.S. 985; Baker v. Nelson, 291 Minn. 310, 191 N.W.2d

14

185 (1972), appeal dismissed for want of a substantial

federal question, 409 U.S. 810 (1972); also see, Zablocki v.

Redhail, 434 U.S. 374, 398-399 (1978) (Powell, J., concur-

ring in judgment); Poe v. Ullman, 367 U.S. 497, 546, 553

(1961) (Harlan, J., dissenting). As previously noted by

this Court, the Fourteenth Amendment simply does not

give federal courts the power to impose upon the states

their version of what constitutes wise social policy.

Dandridge v. Williams, 397 U.S. 471, at 485 (1970), reh.

den. 398 U.S. 914.

C. The Decision Of The Sixth Circuit Does Not Conflict

With Applicable Decisions Of This Court Regarding

The “But For” Standard Of Mt. Healthy v. Doyle

It is respectfully submitted that certiorari should not

be granted in order to determine whether or not the Sixth

Circuit decision is in conflict with the “but for” standard

set forth in Mt. Healthy City School District, Board of

Education v. Doyle, supra. As the Sixth Circuit decision

clearly indicates, its analysis on the “but for” test was not

a determinative issue. That is, the Sixth Circuit merely

indicated that “even if there were no other grounds for

reversing the equal protection award, it would be neces-

sary to remand for a proper Mt. Healthy determinaticn.”

Rowland v. Mad River Local School District, supra, at

450. After making that observation, the Sixth Circuit

went on to hold that, for reasons other than Mt. Healthy

and the “but for” test, the judgment entered by the Mag-

istrate would be reversed and the action against Respon-

dent dismissed.

Furthermore, contrary to the assertions of the Peti-

tioner, the Sixth Circuit decision does not conflict with

this Court's holding in Mt. Healthy. To the contrary, the

Sixth Circuit decision follows that holding. As the Sixth

15

Circuit noted, the Magistrate improperly omitted from

Special Verdict VIII the matter of Petitioner's unsatisfac-

tory job performance, and improperly combined in a sin-

gle special verdict references to Petitioner's exercise of

speech and sexual preference. Thus, the jury’s response

to Special Verdict VIII still made it impossible to tell

whether or not the jury found that Petitioner was sus-

pended and transferred for being bisexual or for talking

about it. Thus, Respondent respectfully submits that it

would be improvident for this Court to grant certiorari to

“reaffirm” the holding in Mt. Healthy when the decision of

the Sixth Circuit does not conflict with that holding.

D. The Sixth Circuit Decision Does Not Conflict With

Applicable Decisions Of This Court, Or Decisions Of

Other Federal Courts Of Appeal, Regarding The Lia-

bility Of Government Employers For Unconstitu-

tional Acts Committed By Key Decision Makers

Who Were In The Process Of Carrying Out Official

Policies

Item F of Petitioner's questions presented for review

and Petitioner's arguments in support thereof are pa-

tently misleading and inaccurate. Petitioner frames this

issue as if it were established at trial that Hopper “was a

policy making official and acted with the approval of the

[Respondent] Board of Education”. (See Petition, p. 26).

That is, there is absolutely no evidence in the record that

Hopper was a “policy maker”. To the contrary, the only

evidence on this issue was that the Respondent School

Board itself makes policy and Hopper's job is simply to

execute whatever that policy might be (Tr. III, 646-647).

Furthermore, it can hardly be stated that Hopper was

acting with the approval of the Respondent Board of

Education, for the Magistrate indicated that “there is. . .

uncontroverted testimony that the board members took

16

no action with respect to the suspension or the transfer”

of Petitioner (Tr. III, 299).

Furthermore, the question, as framed by Petitioner,

implies that Hopper was carrying out an official policy of

the Respondent. However, during the jury instruction

conference at trial, counsel for Respondent raised the

issue of the failure of the Magistrate to submit to the jury

any special verdicts or instructions in regard to the issue

of whether or not any of the action of which Petitioner

complained was taken in accordance with official or unof-

ficial policy of the Respondent School Board. At that

time, the Magistrate indicated that “its very clear” that

there was no such policy (Tr. IV, 232-234). At no time did

Petitioner object to the Magistrate's finding.

Contrary to the assertions of Petitioner, the decision of

the Sixth Circuit is not in conflict with the decisions of this

Court in Monnell v. New York City Department of Social

Services, 436 U.S. 658 (1978) and Owen v. City of Inde-

pendence, Mo., 445 U.S. 622 (1980). In her Petition, Peti-

tioner completely misconstrues the holdings of this Court

in Monnell and Owen. As noted in Gilmer v. City of

Atlanta, 737 F.2d 894 (11th Circuit, 1984); Magayanes v.

City of Chicago, 496 F. Supp. 812, 814 (N.D. Ill. 1980),

Owen did not alter the basic requirement of Monnel/ that

the plaintiff in a civil rights action, in order to recover

against a governmental entity must establish that his

injuries were the result of the execution of the govern-

ment'’s policy or custom. Indeed, Owen, at 655 n.39 and at

657 reaffirmed Monnell’s holding that a local government

could not be held liable except where the government

policy or custom causes the injury. In Owen, the govern-

mental entity was held responsible, not on the basis of

respondeat superior, but because in an official meeting of

the city council, the council had voted on and issued

17

charges against a former police chief. The portion of the

Court’s opinion in Owen, upon which Petitioner appar-

ently relies, is taken out of context. That is, the Court's

discussion on decision makers (445 U.S. at 656) was con-

tained in the Court’ rationale for denying good faith

immunity to local municipal corporations. Clearly, the

Court was not saying that the acts of decision makers

render the municipal corporation liable, irrespective of

any governmental policy. Under the Monnell standard,

the fact that a decision maker causes the injury is irrele-

vant unless that decision maker is executing a govern-

mental policy or custom. To hold a governmental entity

liable based solely on the fact that the injury was inflicted

by a decision maker is not supported in logic or in law.

That is, it is an established fact that no fictitious entity can

act of its own force, it must have some employees. All

those employees are, to a certain extent, vested with

some power to make decisions. But this is not to say that

every decision they make is in accordance with the em-

ployer’s policy. Surely, if the decision maker makes a

decision or takes an action contrary to established policy,

then it is the decision maker and not the governmental

policy that causes any injury. Similarly, if the decision

maker acts upon a subject about which there is no govern-

mental policy, any injury results from the act committed

and cannot be causally related to any policy of the govern-

ment. Thus, the term “decision maker” has little or no

meaning—and no limitations—unless it is related to the

meaning given by Monnell, i.e. one who makes govern-

ment policy or custom, and, the policy having been made,

is carried out and produces injury.

The evidence in this case establishes nothing more than

that the local superintendent Hopper took some action

which perhaps injured Petitioner. Unless Petitioner can

18

establish a policy or custom of the Respondent Board of

Education to exclude homosexuals from employment or

to discriminate against persons who exercise free speech,

certainly there is no showing which satisfies Monnell and

Owen. In the case at bar, on more than one occasion, the

Magistrate indicated that whatever action may have been

taken against Petitioner, it was not because there was a

policy of Respondent to discriminate against either homo-

sexuals or against people who exercise a right of speech

(Tr. IV, 232-234, 399). Indeed, there was no evidence to

support an equal protection claim in this case, and there

was not even any evidence that a classification had been

established (Tr. III, 620). The evidence merely shows that

Hopper took some action based upon his own decision.

At page 28 of the Petition, Petitioner suggests that the

decision of the Sixth Circuit is at odds with other Circuit

Courts of Appeal which have decided whether or not

governmental bodies are liable for unconstitutional acts

committed by decision makers. Key v. Rutherford, 645

F.2d 880 (10th Circuit, 1981) and Universal Amusement

Co. v. Hofheinz, 646 F.2d 996 (5th Circuit, 1981), are not

relevant because they do not deal with the issue at all.

Rather, they deal with the issue of the availability of the

good faith defense to governmental bodies.

Similarly, the case of Kingsville Independent School

District v. Cooper, 611 F.2d 1109 (5th Circuit, 1980) is not

pertinent because that case involved action having been

taken by the school district board of trustees itself—not

some principal or superintendent or other administrative

employee. The case of Burt v. Abel, 585 F.2d 613 (4th

Circuit, 1978) must be questioned in light of other au-

thorities and in light of the fact that the court’s analysis on

the issue is contained in a footnote, contains no citations of

authority, and is quite brief. To the extent the case of

19

Williams v. City of Valdosta, 689 F.2d 964 (11th Circuit,

1982) would seem to support Petitioner's proposition, that

case must be read in light of a later case from the same

circuit, Gilmer v. City of Atlanta, supra, which indicates

that a decision maker does not create liability upon the

governmental body; liability, if any, is imposed upon the

governmental body when custom has been created or

maintained by law makers or persons whose edicts or

acts may be fairly said to represent official policy—that an

isolated incident does not constitute custom. Thus, the

decision of the Sixth Circuit does not conflict with applica-

ble decisions of this Court; nor does it conflict with deci-

sions of other federal courts of appeal.

IV. CONCLUSION

For the foregoing reasons, Respondent respectfully

submits that the Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

should be denied.

Respectfully Submitted,

MICHAEL J. BURDGE

YOUNG, Pryor, LYNN & JERARDI

1400 First NATIONAL PLAZA

P.O. Box 910

DAYTON, OHIO 45402

(513) 224-1981

Attorney for Respondent