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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1009

## Text

- 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2346%3A3. Public record. Not legal advice.