Reply Brief — Barrow v. Greenville Independent School District, (2007) (No. 59)

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KAREN JO BARROW,

Petitioner,

GREENVILLE INDEPENDENT

SCHOOL DISTRICT, ET AL..,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITIONER’S REPLY

‘

EDWIN MEESE III, KELLY SHACKELFORD

75th U.S. Attorney General Counsel of Record

TODD F. GAZIANO HIRAM S. SASSER III

214 Massachusetts Ave., NE LIBERTY LEGAL INSTITUTE

Washington, D.C. 20002 903 E. 18th, Ste. 230

(202) 608-6181 Plano, Texas 75074

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WM. CHARLES BUNDREN

WM. CHARLES BUNDREN &

ASSOCIATES

5300 Town & Country Blvd.

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OR CALL COLLECT (402) 342-2831

PETITIONER’S REPLY TO

RESPONDENT’S STATEMENT OF CASE

Respondent admits that Superintendent Smith “did

not recommend Barrow for the job because her children

went to private school,” Respondent’s Brief at 1 (emphasis

added) and that “Barrow had ‘no future’ at GISD as long

as her children did not attend GISD schools.” Jd. Respon-

dent also admits that Barrow’s suit was based on Superin-

tendent Smith “refusing to consider, interview, or

recommend her to the GISD Board of Trustees unless she

enrolled her children in public school.” Jd. at 2.

Despite these clear admissions that the action of

Superintendent under review was his refusal to “recom-

mend” Barrow for the job “because her children went to

private school,” and in an attempt to avoid the clear conflict

among the circuits, Respondent spends the vast majority of

its Brief arguing that the GISD Board maintained the right

to “make all final decisions with respect to the selection of

personnel.” Jd. at 5. Clearly, they did not. They did not

review, nor did they have the authority under Texas law to

review — at all — the Superintendent’s decision to refuse an

applicant the “recommendation.” App. 6.

Under Texas law, if an applicant wants to pursue

employment with the school district, the applicant must

first be interviewed by the Superintendent. Then the

Superintendent makes a final decision regarding whom to

recommend. See App. 6; Tex. Educ. Code § 11.163(a)-(b).

Finally, the Board of Trustees votes on that recommended

applicant — up or down. See id. The Board cannot vote to

approve some other applicant who was not “recommended”

by the Superintendent. See id. In addition, the Superin-

tendent does not present a slate of applicants. Only one

applicant is recommended. If the Superintendent refuses to

recommend an applicant to the Board, that applicant cannot

be considered by the Board. And because, as the Fifth Circuit

stated, this sole authority to recommend comes from the

Texas legislature, not the Board of Trustees, the Board is

powerless to override the Superintendent’s denial of a

recommendation even if the applicant files a grievance with

the board. Thus, Respondent’s argument that the “board

retained ‘meaningful review’ [to] make all final decisions

with respect to selection of personnel,” id. at 5, is unten-

able and is merely a desolate attempt to obfuscate the

conflict among the circuits.

The Texas Education Code delegates the sole, final

and unreviewable discretion to school Superintendents to

deny a job recommendation, and, under Texas law, school

boards lack any authority to review those decisions. See

Tex. Educ. Code §§ 11.163(a)(1), 11.201(a), and 11.201(d);

App. 1-2. It matters not that the board may review a

recommendation that is made. Barrow’s quest for the job

ended when Superintendent Smith denied her the “rec-

ommendation,” and Texas law does not provide for any

review of that decision. |

The Fifth Circuit clearly held that because the school

board retains the power under Texas law to enact policies

to restrict discrimination by the Superintendent, even if

the power is never used, the board is in general the poli-

cymaker for the district. This is consistent with the Fourth

Circuit approach criticized by Judge Luttig and at odds

with the Third, Sixth, Tenth and Eleventh Circuits.

PETITIONER’S RESPONSE TO RESPONDENT’S

REASONS FOR DENYING THE PETITION

Respondent’s arguments for denying the Petition are

based on the erroneous premise that the Texas Education

Code grants school boards the right to review decisions of

school Superintendents denying applicants the “recom-

mendation.” That is simply not true.

There are very clear distinctions among the ap-

proaches of the Third, Fourth, Fifth, Sixth, Tenth and

Eleventh Circuits as outlined in the Petition. In sum, the

Fourth and Fifth Circuit’s hold that if a government

official’s decision may be prescriptivély constrained by the

policy of a board or other official, whether or not any policy

to constrain the discrimination is actually implemented

prior to the act of the official, such theoretical power is

enough to hold that the government official is not the final

policymaker. See App. 7; Riddick v. School Bd., 238 F.3d

518, 527 (4th Cir. 2000) (Luttig, J., dissenting) (“the

majority mistakenly concludes that a statutorily desig-

nated policymaker who retains but pro forma final review

authority, is, and can be, the only final policymaker for

purposes of municipal liability under section 1983”).

In the Fifth and Fourth Circuits, no actual review of

the decision is required to avoid § 1983 liability and the

Fifth Circuit so stated very explicitly. App. 8-9 n.17 (“a

person is not a policymaker when he makes a decision

simply because that decision is unreviewable”). The Third

and Sixth Circuits hold that a government official’s act

binds the governmental entity, i.e. the government official

is a policymaker, when the official’s act is “unreviewable.”

The Tenth and Eleventh Circuits require not only review-

ability, but “meaningful review” to avoid liability.’

Respondent’s arguments avoid addressing this conflict

and instead retreat to Respondent’s erroneous position

that the Texas Education Code provides for “review” of a

school Superintendent’s denial of the “recommendation”

because “the school board itself reviewed a recommenda-

tion, so it was clearly meaningful and not merely hypo-

thetical.” Respondent’s Brief at 13. This misses the mark.

The board did review a recommendation of another appli-

cant, but the board did not and could not review the denial

of the recommendation to Ms. Barrow.

Respondent actually makes the case for granting

review on pages 14 and 15 of its brief. Respondent states:

The GISD’s board had meaningful review because

they had the power to reject what was merely

a recommendation; had the GISD timely known

that patronage was being considered to make

the recommendations, it could have rejected the

' Kneipp v. Tedder, 95 F.3d 1199, 1213 (3rd Cir. 1996), Waters v.

City of Morristown, 242 F.3d 353, 362 (6th Cir. 2001).

* Randle v. City of Aurora, 69 F.3d 441, 448-49 (10th Cir. 1995);

Holloman v. Harland, 370 F.3d 1252, 1292 (11th Cir. 2004).

Superintendent’s practice and reprimanded him,

and then directed him to bring forth recommen-

dations without patronage considerations.

Respondent’s Brief, pp. 14-15. Respondent, however, did

not do this when Ms. Barrow filed her charge with EEOC,

when she filed suit, or even to this day. That is the point of

conflict. The Fifth and Fourth Circuits hold that the

theoretical power to proscribe conduct in the future, even

if the power is never used, is enough to hold that the

official is not a final policymaker. —

Such theoretical power, when it is not exercised in a

case, is consistent with the Tenth’s holding that “our

decisions also underscore that any review procedure or

constraints must be meaningful ~ as opposed to merely

hypothetical ~ in order to strip an official of ‘final policy-

making’ authority” (emphasis in original)’ and that “[flor

all intents and purposes the Chief’s discipline decisions

are final, and any meaningful administrative review [by

the City Council or City Manager] is illusory.” And,

equally conflicting, the Eleventh Circuit’s application of

the “meaningful review” standard in Holloman v. Harland,

370 F.3d 1252, 1293 (11th Cir. 2004) (“While the student

handbook set out an [sic] formal multi-step appellate

process that was theoretically available on paper, Hollo-

man could not, as a practical matter, take advantage of

it.”) is unexplained by Respondent.

Nor does Respondent even attempt to explain how the

Fifth and Fourth Circuits are consistent with the approach

in the Sixth Circuit which holds that “[t]he authority to

exercise discretion while performing particular functions

does not make a municipal employee a final policymaker

unless the official’s decisions are*final and unreviewable

and are not constrained by the official policies of superior

officials.” Waters v. City of Morristown, 242 F.3d 353, 362

(6th Cir. 2001) (emphasis added). In this case the Fifth

* Randle, 69 F.3d 441, 449 (10th Cir. 1995).

* Flanagan v. Munger, 890 F.2d 1557, 1569 (10th Cir. 1989).

Circuit said “a person is not a policymaker when he makes

a decision simply because that decision is unreviewable.”

App. 8-9 n. 17. Dr. Smith’s decision to deny the recommen-

dation to Ms. Barrow was unreviewable as a matter of law.

His decision was not actually restrained by any policy on

the issue of private school choice. At best, Respondent

could have enacted a policy to proscribe such discrimina-

tion based upon private school choice in the future. Re-

spondent even failed to do that. Under Respondent’s

approach, a superintendent could deny every African-

American candidate a recommendation. The school dis-

trict, as long as it had the theoretical power to act, even if

it refused to do so, would remain unaccountable.*

CONCLUSION

The conflicting approaches and standards used by the

circuits to determine when a decision by a public official is

a decision of the municipality so that § 1983 liability

attaches cannot be ignored. The federal circuits are using

different criteria to determine culpability in this important

area of the law. The Petitioner’s Petition should be granted

in order to resolve the conflict and apply the rule of law in

a consistent manner.

* GISD suggests in its Response that Barrow’s recovery against Dr.

Smith in his individual capacity is a full recovery. This is not true.

First, Barrow’s recovery against Dr. Smith is currently pending on

appeal to the Fifth Circuit. Second, there remains an additional

independent recovery for Barrow against GISD. Finally, because the

court did not allow Ms. Barrow to proceed against GISD on this issue,

costs — $14,492.65 — were assessed against Ms. Barrow, a public school

employee. App. 13.

Respectfully submitted,