Opposition Brief — Pender County Board of Education v. Piver

1

No. 87-1773

In The

Supreme Court of the United States

October Term, 1987

4.

—

PENDER COUNTY BOARD OF EDUCATION, et al.,

Petitioners,

vs.

EDWIN G. PIVER,

Respondent.

he

ON PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

sa.

4

BRIEF OF RESPONDENT

IN OPPOSITION

7%

—_

WILLIAM R. SHELL

P. 0. Box 382

Wilmington, NC 28402-0382

(919) 343-1567

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-696

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Court of Appeals decision violated

established precedent by failing to make any holding as

to whether the speech in question was a substantial or

motivating factor resulting in the complained of trans-

fer, and as to whether the respondert would have been

transferred irregardless of his protected activities?

2. Whether the Court of Appeals’ application of the

Pickering balancing test substantially complied with

the accepted and usual course of judicial proceedings as

the decision (1) was based on facts in evidence and

furthermore was not based on unresolved questions of

material facts decided in the first instance by the Courv

of Appeals in Respondent’s favor without benefit of

factual findings by the District Court and (2) is not

inconsistent with this Court’s recent decision in Rankin

v. McPherson and other decisions of this Court and

several of the Circuit Courts?

3. Whether the Court of Appeals held that the commu-

nity interest in the content of a public employee’s

speech provides that speech with absolute first amend-

ment protection, regardless of its form or context, and

whether the Fourth Circuit erroneously interpreted

this Court’s decisions and is in conflict with other Fec-

eral Circuit Courts?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESEN A ats oso scs sss ciscaenevens i

TABLE OF CORTICES o6 06 scccadusevedensenkbass li

TABLE OF AUER BOD «i ccscccuteacanucayanes iv

STATEMENT OF FACED «6 ss0cccissscdwncnsuansas 1

REASONS FOR DENYING THE WRIT........... 10

I. THE COURT OF APPEALS DECISION DID

NOT VIOLATE ESTABLISHED PRECEDENT

BY FAILING TO MAKE ANY HOLDING AS

TO WHETHER THE SPEECH IN QUESTION

WAS A SUBSTANTIAL OR MOTIVATING

FACTOR RESULTING IN THE COM-

PLAINED OF TRANSFER, AND AS TO

WHETHER THE RESPONDENT WOULD

HAVE BEEN TRANSFERRED IRREGARD-

LESS OF HIS PROTECTED ACTIVITIES... 11

II. THE COURT OF APPEALS’ APPLICATION

OF THE PICKERING BALANCING TEST

DID NOT SUBSTANTIALLY DEPART FROM

THE ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS AS THE DECI-

SION (1) WAS BASED ON FACTS IN EVI-

DENCE AND FURTHERMORE WAS NOT

BASED ON UNRESOLVED QUESTIONS OF

MATERIAL FACTS DECIDED IN THE FIRST

INSTANCE BY THE COURT OF APPEALS

IN RESPONDENT’S FAVOR WITHOUT BEN-

EFIT OF FACTUAL FINDINGS BY THE DIS-

TRICT COURT AND (2) IS NOT

INCONSISTENT WITH THIS COURT’S

RECENT DECISION IN RANKIN uv.

McPHERSON AND OTHER DECISIONS OF

THIS COURT AND SEVERAL OF THE CIR-

CURT CORRES « aosccnnvaudbueeenaecanaeeees 18

iil

TABLE OF CONTENTS-Continued

Page

III. THE COURT OF APPEALS DID NOT HOLD

THAT THE COMMUNITY INTEREST IN

THE CONTENT OF A PUBLIC EMPLOYEE’S

SPEECH PROVIDES THAT SPEECH WITH

ABSOLUTE FIRST AMENDMENT PROTEC-

TION, REGARDLESS OF ITS FORM OR

CONTEXT, AND THE FOURTH CIRCUIT

DID NOT ERRONEOUSLY INTERPRET

THIS COURT'S DECISIONS AND IS NOT IN

CONFLICT WITH OTHER FEDERAL CIR-

I in 0G kes 6 0 6 Ges bo ead we ws vo 22

ed cease sk kao ase wok +a kw AS KA 24

lv

TABLE OF AUTHORITIES

Page

Burger v. Battaglia, 779 F.2d 992 (4th Cir. 1985) ....23

Connick v. Myers, 461 U.S. 138 (1983)

:5 kas aE Eka ee 12, 13, 14, 15, 19, 22, 23

Givhan v. Western Line Consolidated School Dis-

Me BO Be), | re re 15

Hamer v. Brown, 831 F.2d 1398 (8th Cir. 1987) ....17

Jurgensen v. Fairfax County, 745 F2d 868 (4th

See ENT 0 Gc Laie ane ie eee eae eee Ran s 14

Mt. Healthy Cty. School District v. Doyle, 429

Se Oe OE oi oo ta PEA KK SRE ROO CA 15, 17

Perry v. Sinderman, 408 U.S. 593, (1972).......... 12

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

ER ica ca eh end deecaseueesa cee 10, 12, 13, 18

Piver v. Pender County Bd. of Educ., 835 F.2d

Risen Ce OE 6.5 sc cao ne ewe sa hese 12

Rankin v. McPherson, 97 L.Ed.2d 315 (1987)

FE EE Oe ee er ete Lead ap ety Che Ali 13, 18, 21, 22

No. 87-1773

4.

a4

In The

Supreme Court of the United States

October Term, 1537

y%

vw

PENDER COUNTY BOARD OF EDUCATION, et al.,

Petitioners,

V.

EDWIN G. PIVER,

Respondent.

A.

-

ON PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

+.

vv

BRIEF OF RESPONDENT

IN OPPOSITION

,%

—_

The Respondent, Edwin G. Piver, opposes Peti-

tioners’ Request for a Writ of Certiorari to review the

judgment and opinion of the United States Court of

Appeals for the Fourth Circuit and respectfully submits

this Response:

STATEMENT OF THE FACTS

Edwin G. Piver, the Respondent, has been

employed as a social studies teacher in the Pender

County School system since the year 1966-67. His

teacher evaluations have always been favorable and

have usually been outstanding (R. 342-344). There had

1

ail iiacccnalianilil

never been any problems with Piver as a teacher. At the

time of the events complained of in this case, he was

Chairman of the Social Studies Department at Topsail

Junior-Senior High School.

In the late part of 1981 and early 1982, the Pender

County School Board, according to the deposition testi-

mony of the Board members, had received complaints

about Ralph Jourdan, the principal at Topsail Junior-

Senior High School, at a time when it was in the pro-

cess of deciding whether or not he should be granted

tenure. While principal Jourdan had been given good

evaluations by M. D. James, the Pender County School

Superintendent (R. 210). In early 1982 a number of

meetings were held by the School Board itself and also

in conjunction with the Topsail Advisory Council (R.

210).! The Respondent was a loyal supporter of Jour-

dan, his principal, whom he felt to be a good, profes-

sional educator.

In March, 1982, the plaintiff and his wife, Kay

Piver, met with Board Chairman J. J. Smith three

times to speak in support of Jourdan but were told by

Smith that Jourdan was not going to be granted tenure

(R. 817, 918-922).2 The Topsail Advisory Council met-

March 22 and 29, 1982 regarding Jourdan’s tenure.

1 The School Board had set up “Advisory Councils”

within each school district in the county to advise it on

matters which related to the schools in the particular

district.

2 Smith is related to Mrs. Piver by marriage.

—

The Pender County Board of Education then called

a joint public meeting of the Pender County Board of

Education and the Topsail Advisory Council for April 8,

1982 regarding Jourdan’s tenure. Prior to that meeting

a number of the teachers at the school met with Piver

and asked him to be their spokesman in support of

Jourdan (R. 936). Another teacher who supported Jour-

dan placed Piver on the agenda for the meeting and

Piver then prepared his own speech to be read at the

meeting (R. 937). The joint meeting was held at Topsail

High School in executive session without the presence

of Jourdan; speakers, both pro and con were called in

individually to speak (R. 937). At the appropriate time

Piver gave his speech, which was supportive of Jour-

dan, in a respectful manner (R. 601). Piver had pre-

pared the speech himself and had reviewed it with a

number of the teachers to obtain their approval (R.

601). The meeting with the teachers, for which Jourdan

had granted permission, was the only time Piver was

ever out of his classroom on anything regarding Jour-

dan’s tenure and it was done during the teachers’ plan-

ning periods (R. 211).

At the hearing of April 8th, Piver also presented to

the Board a petition which had been initiated by a

student in Piver’s government class (R. 947). Piver had

no role in the preparation or circulation of this petition;

Hoffman had come to Piver and had asked what would

be wrong with the students initiating a petition on

behalf of Jourdan to which Piver responded that it

would be his right to do so under the First Amendment

(R. 947).

Board Chairman Smith had encouraged people who

had complaints against Jourdan to come to the meeting

of April 8th and speak (R. 598). Smith acknowledged

that there were a number of people in the school in

support of Jourdan but he viewed the plaintiff as the

leader because of his speech on April 8th (R. 628-629).

Immediately after the hearing of April 8, 1982, the

plaintiff had a conversation with Superintendent of

Schools, M. D. James who stated “Glenn, you would

have been better off if you hadn’t come here tonight.”

(R. 942). The Board of Education made no decision on

the night of April 8, 1982, but met again on Easter

Monday, April 12, 1982, in executive session (R. 435).

At that time Wanda Cherry, guidance counselor at the

school, who had been a vocal critic of Jourdan and who

had been encouraged to attend the meeting by both

Smith and James, spoke out against Jourdan (R. 951).

Miss Cherry was the only faculty member who ever

spoke before the Board against Jourdan (R. 618). At the

meeting the Board voted four to one not to grant Jour-

dan tenure. Although Jourdan could have remained as

a teacher in the school system, he was told by James

that he should resign or James would make it so diffi-

cult on him that he would never be able to find another

principal’s job (R. 213, 961).

Several of the Board members and Superintendent

James in their depositions made vague references to

the fact that they had received “complaints” regarding

Piver’s activities in support of Jourdan at the school.

However, in none of their depositions were any one of

them able to cite a single specific complaint which had

been made about Piver’s activities. The vague refer-

ences in their depositions were to Piver ostensibly hav-

ing circulated a petition in his class in support of

Jourdan, trying to unduly influence a student to sup-

port Jourdan, having taken some students off of a

school bus in the morning and into the library to

request them to sign a petition, and advising students

to picket a school function. None of these activities ever

occurred (R. 212).

After the Board terminated Jourdan, Piver and

other persons living in the Topsail area met on a

number of occasions and planned efforts to persuade

the Board to reverse its decision; Piver spoke in support

of Jourdan at several of the meetings which were held

at the school (R. 963-964). Members of this group,

including Piver, collected signatures on a petition to

present to the Board asking that Jourdan be retained,

and on May 3, 1982, representatives of the group met

with the Board which refused to reverse its decision (R.

968).

During the period of time between March and May,

1982, when the Jourdan matter was proceeding to a

conclusion, Piver occasionally talked to his students

both individually and as a group about the Jourdan

issue although he never initiated any of the discussions

in his social studies classes (R. 969-970). The discus-

sion would be initiated by a student and might proceed

for five or ten minutes on occasions (R. 971). Though a

petition in favor of Jourdan was brought into Piver’s

classroom at one time, Piver did not permit its circula-

tion during class (R. 972). Never at any time during the

process did Piver leave his class unattended while he

was discussing the issue of Jourdan’s contract with any

one (R. 974).

Piver’s impression was that after the Board had

made its final decision, most everyone at the school

tried to put it behind them and get on with the end of

the school year (R. 980). As far as Piver was concerned

once a decision had been made, even though he dis-

agreed with it, he was ready to put it behind him (R.

981). No directions were ever given by the Board of

Education to Superintendent James as to what if any-

thing he was to do about Piver. The Board, in fact, took

no action of any kind during this period of time either

regarding Piver or any other teacher (R. 640). Smith

did indicate however in his testimony that James was

“concerned about suppressing the situation” and that

James had admitted in so doing he might be stepping

on some people’s constitutional rights (R. 631).

The School Board election was scheduled for June,

1982. At that time the defendants J. J. Smith, R. E.

Brown and Wilbert Henry were up for re-election. In

the election Smith was opposed by Twila Jones, Brown

by Dr. Brenda Rivenbark and Henry by a Mrs. Harrell

(R. 991). Piver supported all three of the challengers

(R. 991). He talked to other individuals in his commu-

nity and solicited their vote against the incumbents

and for the challengers (R. 991). The Board members

knew there was opposition to Smith and Brown in the

Topsail community both before and after the election

(R. 375, 642-644). Smith talked to fellow Board member

Henry about it and specifically stated that he thought

that the plaintiff and his family were working to defeat

him because Smith had been against Jourdan (R.

376-377).

In addition to Piver’s support of the challengers in

the June, 1982 School Board election, his wife, Kay,

worked for the challengers, Jones and Rivenbark (R.

711).

After the election, Smith accused Kay Piver of elec-

tion irregularities and filed a protest (R. 726). The

hearing on the alleged election irregularities was held

before the Board of Elections of Pender County one of

whose members was Etha Piver, Piver’s mother, and

the lone Republican member of the Board of Elections

at that time. After the hearing, the protest was disal-

lowed by the local Board of Elections and upheld by the

State Board of Elections.

The school year ended in early June, 1982. The

School Board and Superintendent then proceeded to

hire a new principal for the Topsail Junior-Senior High

School. The new principal was Thomas Benton, who

was hired as of July 1, 1982. Neither the School Board

members nor Superintendent James discussed with the

new principal anything about any difficulties which

they might anticipate at the Topsail Junior-Senior High

School with Piver or his possible transfer to another

school with the exception that the Chairman Smith had

approached Benton about the matter and Benton told

him specifically that Piver should not be transferred (R.

214). Benton anticipated no problems with Piver during

the 1982-1983 school year and there were none (R.

214). No one at anytime, either from the Pender County

School Board or from the office of the Superintendent

ever conferred with Piver regarding the possibility of

any anticipated difficulties or a possible transfer (R.

423, 653). Piver never had any notice or indication that

his employment would be discussed at the July 26, 1982

meeting; it was not even on the agenda. No investiga-

tion whatsoever was ever made by the Board or any of

its members regarding any alleged complaints, diffi-

culties, or other problems which might have either been

associated in the spring of 1982 or anticipated during

the 1982-83 school year regarding Piver and his

employment as a teacher at the Topsail Junior-Senior

High School. At the meeting on the 26th James made

no recommendation that Piver be transferred. The mat-

ter of Piver’s transfer was handled very quickly when

after some brief discussion the Board voted unani-

mously to transfer him to Atkinson Junior High School

with Smith making the motion (R. 656). This was out of

the course of the normal operations regarding transfers

of school personnel between one school as such trans-

fers are usually handled administratively by the Super-

intendent and none of the Board members in their

testimony could recall any other transfer having been

made by the Board without some recommendation by

the Superintendent during their respective tenures (R.

660-661). None of the other teachers supporting Jour-

dan were transferred nor was Miss Cherry (R. 661).

Piver lived in the Topsail community within one (1)

mile of the Topsail School and the transfer to Atkinson

Junior High School resulted in an eighty (80) mile

round trip for him (R. 1001). A letter dated July 27,

1982, was sent to Piver by Superintendent James stat-

ing that he was transferred to Atkinson; the letter did

not state what Piver would be teaching at that school

(R. 340). Piver was certified to teach social studies only

on a secondary level and according to his teacher’s

certificate was not certified to teach anything in junior

high school (R. 1001-1004). Piver talked to Gary Lesh,

the principal at Atkinson, to find out what he would be

teaching since school would be starting shortly; Piver

found out that the only courses available to teach would

be in seventh grade science and physical education (R.

1002). Piver had no courses in teaching science or phys-

ical education and in addition has an artificial foot, loss

of several fingers on one hand from an accident and

arthritis (R. 1002). When Piver visited Lesh at Atkin-

son Junior High School, Lesh had a letter typed up to

the Assistant Superintendent stating that the only

courses available at Atkinson were courses in seventh

grade science and physical education (R. 1002).

Approximately one week after the transfer had

been made, Evelyn Wells of Hampstead, North Caro-

lina, called Smith and asked why Piver had been trans-

ferred; Smith called her back and said that it was

“politics” (R. 208-209). Smith also stated to Mrs. Wells

that if he could have found a place for Kay Piver he

would have transferred her also (R. 1016).

The plaintiff proceeded to file a grievance and hired

the law firm of Trawick and Pollock as his attorney (R.

1005). After a meeting with the School Board on August

10, 1982, he was told that if he would sign a loyalty

10

oath he would be retransferred to Topsail (R. 340,

1036).3

The plaintiff believed that the loyalty oath

deprived him of his First Admendment rights to free

speech and his better judgment told him not to sign it;

however, his wife was extremely upset and he realized

the hardship on her as well as the additional hardship

and expense of having to make an 80 mile round trip to

Atkinson and signed the statement against his better

judgment; the letter was then placed in his personnel

file (R. 1039-1040). The 1982-83 school year proceeded

smoothly and there were no problems between Mr. Ben-

ton, the new principal, and Piver. Later Piver requested

that the letter be removed from his personnel file, but

the School Board refused by a three to two vote. The

letter was finally removed over a year later after Piver

was represented by new counsel and again requested

its removal.

»

_

REASONS FOR DENYING THE WRIT

In a long line of decisions beginning with Pickering

uv. Board of Education, 391 U.S. 563 (1968) this Court

3 The statement dated August 10, 1982, read as follows:

Gentlemen:

You have my assurances that I will cooperate fully with

Mr. Thomas C. Benton, the new principal at Topsail High

School, that I will perform my teaching duties and assigned

responsibilities to the best of my ability, and that I will

support the Board of Education in the implementaion of its

policies and decisions.

Sincerely yours,

/s/ Edwin G. Piver

11 *

set forth the standards which determine whether a

public employees’ speech is protected by the First

Amendment. The analysis essentially is made using the

standards on a case by case basis depending upon the

factual situation presented by each case. Though such

an analysis may, at first blush, seem to at times pro-

duce results which might not always be completely

reconcilable, it is not because, as Petitioners would

contend that there is confusion among the Circuit

Courts on the proper procedure to be followed, but is

instead due to the many varied factual situations pre-

sented to the courts, such as the one here. In this case,

Petitioners ask this Court to issue its Writ to resolve

what appear to be essentially factual matters. The

proper procedure has been well defined by this Court.

The manner in which the Fourth Circuit Court of

Appeals decided this case, based on the issues before it,

was in accord with the proper procedure as delineated

- by this Court and with the other Circuit Courts of

Appeal.

I. THE COURT OF APPEALS DECISION DID

NOT VIOLATE ESTABLISHED PRECEDENT

BY FAILING TO MAKE ANY HOLDING AS TO

WHETHER THE SPEECH IN QUESTION WAS

A SUBSTANTIAL OR MOTIVATING FACTOR

RESULTING IN THE COMPLAINED OF

TRANSFER, AND AS TO WHETHER THE

RESPONDENT WOULD HAVE BEEN TRANS-

FERRED IRREGARDLESS OF HIS PRO-

TECTED ACTIVITIES.

The Fourth Circuit Court of Appeals has deter-

mined by applying the analysis set forth in a long

12

series of cases decided by this Court that the Respon-

dent’s speech addressed an issue of public concern* and

that the Respondent’s speech, in applying the balanc-

ing test, outweighed any perceived harm caused to the

Petitioners’ interests in running the Pender County

School system.5 This ruling is not in conflict with any

decision of other Circuit Courts or the decisions of this

Court.

In a long series of cases this Court has clearly

delineated the analysis to be followed in balancing a

public employee’s rights to free speech under the First

Amendment to the Constitution and the government’s

interest in promoting the efficiency of public services.

It is clearly established that a state may not discharge

an employee on the basis that infringes on that

employee’s Constitutionally protected interest in free-

dom of speech. Perry v. Sinderman, 408 U.S. 593,

(1972). A determination of whether a public empleyer

has properly discharged an employee for engaging in a

speech requires “a balance between the interests of the

[employee] as a citizen in commenting upon matters of

public concern and the interests of the State, as an

employer, in promoting the efficiency of public services

it performs through its employees.” Pickering, 391 U.S.

at 568; Connick v. Myers, 461 U.S. 138, 140, (1983).

This policy recognized that “vigilence is necessary to

insure that public employers do not use their authority

4 Appendix to Petition at P. 9a, Piver v. Pender County

Bd. of Educ., 835 F.2d 1076, 1080 (4th Cir. 1987).

5 Appendix to Petition at P. lla, ZJd., at 1082.

13

over employees to silence discourse not because it ham-

pers public functions but simply because superiors dis-

agree with the content of the employee’s speech.”

Rankin v. McPherson, 97 L.Ed.2d 315, 324 (1987).

The threshold question in analyzing the question

as set forth in Pickering and in Connick is whether the

employee’s speech may be “fairly characterized as con-

stituting speech upon a matter of public concern.” Con-

nick, 461 U.S. at 146. “Whether an employee’s speech

addresses a matter of public concern must be deter-

mined by the context, form and content as revealed by

the whole record.” Jd., at 147-148. In this case, the

District Court found that the Respondent’s speech did

not address a matter of public concern and stopped its

inquiry at that point by granting summary judgment in

the favor of the Petitioners. The Court of Appeals

disagreed and held that the Respondent’s presentation

of his thoughts on the Jourdan tenure issue at a public

School Board meeting called for the purpose of solicit-

ing input on the issue, the guiding of class discussion

and participation in his social studies class and private

conversations with the Chairman of the School Board

and other teachers addressed an issue of public con-

cern.? This Court’s review of the determination of the

Courts below is limited by its obligation to assure that

the record supports that particular Court’s conclusion.

Rankin v. McPherson, 97 L.Ed.2d at 325. The record in

this case clearly reveals that the conclusion of theCourt

of Appeals is amply supported as it clearly

6 Appendix to Petition at P. 21a.

7 Appendix to Petition P. 8a-9a, Jd., at 1082.

1A

ravoala the erronenmus derision of the District Court on

this threshold issue “Whether an employee's speerh

aiidresces a matter of public concern must be leber

miner by the tontewt, form and content of a given

chatemeont. as revealed by the whole record” Connich,

AG) TiS gt 1A7 148 ‘This is the exact analysis per

formod by the Court of Appeals as it earned on an

eeoropabicen of the rontont, froren and rontext 7 the

Hecpondent’s speech and compared that contest, form

anidecontont with the employee's speech in Jurgensen v

Vairfae County, TAS Fd BGR Ath Cin 196K), relied on

both petitioners and then concluded as a matter of law

that the Hespondent’s speeth was an issue of pousbolae

efopee orn

Though the District Court had granted summary

juelgent in favor of the petitioners based tpon ite

ronelusions that the Hespondent’s speech was nob on

matter public concern and therefore did not reach the

cerond half of the two pronged analysis to determine

the protected apeerch the “balancing” inquiry thie

CourtolAppeale addressed it as a question of law and

reparded the record below as sufficient to enable it to

rile on the issue correctly The record before the Court

of Appeals included the deposition testimony of all of

the Hehool Hoard members, Huperintendent James,

Wanda Cherry, Gary Prawickh, Kay VPiver, Assistant

Miineipal Robert Kermon and the Respondent, along

with the alfidavita of Nvelyn Wella (RO 2OK), Ralph

Jourdan CH YI) and Thomas Tenton who succeded

Jourdan ae the principal Gld) plus the Reapondents

0

Appendia te Petition af Po Ma, lid. at TORO

answers to the Petitioners’ Interrogatories and Request

for Production of Documents (RK. 215). In other words

the Court of Appeals, just as the District Court, had

before it the testimony of practically everyone with any

relevent knowledye of the facts of this case. In addition,

the parties thoroughly briefed the issues, of the “bal

ancing” inquiry before the Court of Appeals. With the

record before the Court of Appeals, its conclusion that

the balance tipped in favor of the Respondent was well

supported by the evidence in the record. The inquiry

into the protected status of speech is one of law, not

fact. Connich, 461 U.S. at 144, n. 7

The Petitioners now complain and urge on this

Court as reason to grant the Writ that the Court of

Appeals did not employ what the Petitioners would

term four-pronged analysis and complain essentially

of the lack of a holding by the Court of Appeals itself or

an affirmative direction on remand by the Court of

Appeals to the District Court to decide (1), whether the

Respondent's speech was a substantial or motivating

factor in the decision to transfer him and, (2), if so,

whether the School Board would have taken the same

action based on other grounds. Petitioners rely on the

language in Mt. Healthy Cty. School District vo. Doyle,

AZO US. 774 1977), and Gihan v. Weatern Line Con

solidated School Diatrict, 439 U.S. 410 (1979). As to

these two questions the Court of Appeals merely made

no holding on either, both of which are questions of fact

After discussion which led the Court of Appeals to

determine the Respondent's speech was a matter of

public concern and that the balance tipped in favor of

the Respondent in the balance inquiry, it then went on

16

to address two other issues which had been raised by

the Petitioners before that Court, that is, whether

there were any compensatory damages and whether the

Respondent had compromised and settled his claim.9

Both of these issues had been raised in the Court of

Appeals by the Petitioners. The Court of Appeals then

remanded for a determination of the compromise and

settlement issue and damages stating that on remand

that if the District Court determined that the Respon-

dent did not compromise and settle his claim against

the defendants then the District Court must analyze

the damages that Respondent incurred on the basis of

the injury to the interests protected by the First

Amendment.!®° The opinion in no respect failed to

require Respondent to prove that his protected free

speech activities were a substantial or motivating fac-

tor in his transfer or precluded the Petitioners from

offering a defense that Respondent would have been

transferred irrespective of his protected activities. The

opinion simply did not address those two factual issues

for they had not been raised by the Petitioners in either

their Memorandum in Support of Defendants’ Motion

for Summary Judgment before the District Court (R.

116-156) nor in their brief before the Court of Appeais.

Furthermore, and even more importantly, the

record is completely devoid of any evidence which

would even raise a material issue of fact as to whether

the Respondent’s speech activities were a substantial or

motivating factor in his transfer or that he would have

® Appendix to Petition at P. lla-15a, Id., at 1082-83.

10 Appendix to Petition, P. 13A, Zd., at 1083.

17

been transferred for some other lawful reason oth-

erthan him exercising his protected activities. To the

contrary, all of the competent evidence in the record

points unerringly to one conclusion which is that the

Respondent was transferred for his protected activities

and that but for those activities he would not have been

transferred. No other reason for the transfer was ever

offered at any place in the record of this case. This is

quite unlike the factual situation of the employee in Mt.

Healthy who had made an obscene jesture to female

students, or in Hamer v. Brown, 831 F.2d 1398 (8th Cir.

1987), cited by the Petitioners where the reason for not

renewing the contract of the public employee professor

was a marked and pronounced decline in enrollment

which occurred prior to his speech activities and where

there was evidence that the University Chancellor did

not even know about the Professor’s speech until the

termination of the appeal process had been done. In

this case there is no evidence to the contrary that but

for the protected speech of the Respondent as discussed

in the opinion of the Court of Appeals, no adverse

personnel action would ever have been taken with

regard to his employment.

The Petitioners therefore mislead this Court by

attempting to obtain a reversal of the decision of the

Court of Appeals on an issue which factually does not

exist nor one which they have ever raised and therefore

cannot be heard to say that the Court of Appeals’ deci-

sion is in conflict with the decisions of this Court nor

the other Federal Circuits. The Court of Appeals had no

obligation on remand to direct the District Court to

review two nonexistent issues.

’ |

18

Il. THE COURT OF APPEALS’ APPLICATION OF

THE PICKERING BALANCING TEST DID

NOT SUBSTANTIALLY DEPART FROM THE

ACCEPTED AND USUAL COURSE OF JUDI-

CIAL PROCEEDINGS AS THE DECISION (1)

WAS BASED ON FACTS IN EVIDENCE AND

FURTHERMORE WAS NOT BASED ON UNRE-

SOLVED QUESTIONS OF MATERIAL FACTS

DECIDED IN THE FIRST INSTANCE BY THE

COURT OF APPEALS IN RESPONDENT’S~—

FAVOR WITHOUT BENEFIT OF FACTUAL

FINDINGS BY THE DISTRICT COURT AND

(2) IS NOT INCONSISTENT WITH THIS

COURT’S RECENT DECISION IN RANKIN v.

McPHERSON AND OTHER DECISIONS OF

THIS COURT AND SEVERAL OF THE CIR-

CUIT COURTS.

Though the District Court granted the Petitioners’

motion for summary judgment on the basis of its hold-

ing that the Respondent’s speech did not involve a

matter of public concern and did not address the Pick-

ering balancing inquiry, the Petitioners in their brief

before the Court of Appeals raised the issue of the

Pickering balancing test and urged it as an alternative

basis for affirming the decision of the District Court.

One must surmize that the Petitioners must have con-

sidered the record sufficiently developed so as to afford

the Court of Appeals the opportunity to decide the issue

as a matter of law. The decision having now been made

by the Court of Appeals adversely to the Petitioners,

they complain that the Court of Appeals made the

decision at all and seek reversal by this Court.

As set forth in Rankin, cited by the Petitioners, the

role of the reviewing court is to insure that the record

supports the lower court’s conclusion that the

19

employee’s statements and the circumstances under

which they were made are of a character which the

principles of the First Amendment protect. The Court

of Appeals in this case correctly recognized, when the

issue was raised by the Petitioners, that when the

-employees’ and audiences’ interests in the speech at

issue outweigh the harm caused by the speech to the

Petitioners’ interests in running the school system, the

speech is constitutionally protected. It correctly recog-

nized that the Respondent’s speech consisted of speak-

ing once before an open meeting of the School Board

and the Topsail School Advisory Council, attending a

Board meeting after the decision not to grant Jourdan

tenure, meeting privately with the Chairman of the

Board of Education on Jourdan’s behalf on three occa-

sions, guiding discussions on the issue during his gov-

ernment classes and allowing a petition in support of

Jourdan to be circulated. As the speech was all directed

to a matter which was clearly of public concern in the

community it was entitled to greater weight in the

balancing test then that of the employee in Connick

where the Court emphasized that “we caution that a

stronger showing may be necessary if the employee’s

speech more substantially involved matters of public

concern.” Connick, 461 U.S. at 152.

Viewing the evidence as taken from the record of

the whole, the Respondent’s speech in this case did,

without question, more substantially involve a matter

of public concern as it did not involve at all the per-

sonal employment situation of the Respondent and was

brought about as a matter of heightened community

interests throughout the Topsail community and the

20

Topsail School by the Board itself when the Board and

its members solicited public input and the efforts to

deny Jourdan tenure became public knowledge. It is

obvious from the record that Board Chairman Smith

was soliciting adverse comment on Jourdan, as he even

showed Respondent letters he had collected, and fur-

thermore both he and Superintendent James had

encouraged Wanda Cherry, the Guidance Counselor at

the school, to attend and speak against Jourdan at the

Board of Education meeting on April 12, 1982, at which

Jourdan was denied tenure. During the time when the

decision on Jourdan’s tenure was a matter of concern

throughout the community, it Jikewise became a matter

of concern among the students at the school who as

could be expected were interested in the outcome. As

correctly found by the Court of Appeals, the Respon-

dent allowed students to circulate a petition, clearly

their right, and at their request presented that petition

when he spoke at the School Board meeting and also

allowed from time to time short discussions on the

issue, again a relevant topic to the students, especially

those in a government class. There is no evidence in the

record that the Respondent was disruptive in any way,

though the Petitioners seek to continue to characterize

his conduct as “disruptive”. During their deposition

testimony, the School Board members and Superinten-

dent James made vague references that they had

received certain “complaints” about the Respondent’s

activities, but not one of them in their testimony could

identify a single, solitary specific complaint nor could

either one of them point to a single disruptive incident

caused by the Respondent. The record clearly reveals

21

that neither the Board nor the Superintendent ever

made any investigation into the alleged complaints

prior to the Respondent’s transfer on July 26, 1982. To

the contrary, the Respondent testified to exactly what

his activities consisted of, which were as set forth in

the opinion of the Court of Appeals, and there is no

competent evidence in the record to refute it. After the

Jourdan tenure decision was made, the school year

proceeded normally until the close of the year around

the first of June; there is no competent evidence to

refute that. Nothing happened until Board Chairman

Smith and Board member Brown were defeated in the

June election. Then at the very next meeting of the

School Board on the 26th, the Respondent was sum-

marily transferred despite the fact that Superintendent

James had not recommended it, the only time that the

School Board members and Superintendent James

could recall a transfer being made without a recommen-

dation by the Superintendent, and in spite of the rec-

ommendation of the new principal, Thomas Benton, to

Chairman Smith that the Respondent not be

transferred.

The Court of Appeals therefore did not base its

decision on facts not in evidence nor did it resolve

disputed facts in the Respondent’s favor. The issue of

the balancing test is a matter of law and the Court of

Appeals correctly, just as urged by the Petitioners,

viewed the record before it as sufficient to decide the

issue as a matter of law. In so doing, the Court of

Appeals likewise did not violate any of the directions of

this Court as set forth in Rankin in conducting its

review of this case. The review conducted by the Court

22

of Appeals was of a record sufficient to rule as a matter

of law. It correctly examined the statements in issue

and the circumstances under which they were made to

see whether they were of a character so as to be pro-

tected by the Fourteenth Amendment. Rankin, 97

L.Ed.2d at 325. The balance was then struck in favor of

the Respondent as a matter of law. The record supports

the Court of Appeals conclusion and it should not be

disturbed by this Court.

—

Ill. THE COURT OF APPEALS DID NOT HOLD

THAT THE COMMUNITY INTEREST IN THE

CONTENT OF A PUBLIC EMPLOYEE’S

SPEECH PROVIDES THAT SPEECH WITH

ABSOLUTE FIRST AMENDMENT PROTEC-

TION, REGARDLESS OF ITS FORM OR CON-

TEXT, AND THE FOURTH CIRCUIT DID

NOT ERRONEOUSLY INTERPRET THIS

COURT’S DECISIONS AND IS NOT IN CON-

FLICT WITH OTHER FEDERAL CIRCUIT

COURTS.

On this issue, the Petitioners indeed clutch at

straws. As correctly recognized by the Petitioners in

their petition this Court in Connick, 461 U.S. at 138,

ruled that employees speech would be protected if it

was on a matter of public concern and that the “public

concern” issue was a threshold question to be decided

as a matter of law. Contrary to the position of the

Petitioners, the Court of Appeals made no holding that

“community interest in the content of a public

employees speech provides that speech with absolute

First Amendment protection regardless of its form or

23

content.” To the contrary, the Court of Appeals scru-

pulously applied the direction of this Court in analyz-

ing the “content, form and context, of the Respondent’s

speech.”!1

The Court of Appeals had previously recognized in

Burger v. Battaglia, 779 F.2d 992, 998-99 (4th Cir.

1985) that cases involving “private personnel griev-

ances” should be excluded from First Amendment pro-

tection and should be screened out when the aggrieved

employee has spoken out about his own employment

situation when the employment situation holds little or

no interest for the public at large.!2 The decision in

Burger, and in this case, were therefore in accord with

the long line of decisions of this Court, including Con-

nick. The Court of Appeals in this case never held that.

the level of community interest determines (emphasis

added) whether the issue is a matter of public concern,

though, as that court correcily recognized, that such

community interest is a factor in comparing cases like

this with others which are mere private personnel

grievances. In fact, the Court of Appeals applying the

“content, form and context” approach as directed by

Connick and analyzing in that light each of the speech

activities of the Respondent, found those activities to

be a matter of public concern and not a mere private

personnel grievance not entitled to First Amendment

protection.

>

11 Appendix to Petition at P. 8a, Jd., at 1080.

12 Appendix to Petition at P. 7a, Jd., at 1080.

24

CONCLUSION

For these reasons, a writ of certiorari should not be

issued to review the judgment and opinion of the

Fourth Circuit Court of Appeals.

William R. Shell

Attorney for Respondent

P. 0. Box 382

Wilmington, NC 28402-0382

(919) 343-1567