Opposition Brief — Smith v. Barrow (No. 07-1089)

(P No. 07-1089 | FILED

APR_1 4 2008

3n The SUPREME COURT Ue

Supreme Court of the United States

.

DR. HERMAN SMITH,

Petitioner,

¥.

KAREN JO BARROW,

Respondent.

.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

BRIEF FOR RESPONDENT IN OPPOSITION

*

WM. CHARLES BUNDREN KELLY J SHACKELFORD

2591 Dallas Parkway, Counsel of Record

Suite 300 HIRAM S. SASSER, III

Frisco, Texas 75034 ROGER L. BYRON

Telephone: (972) 624-5338 LIBERTY LEGAL INSTITUTE

Facsimile: (972) 524-5340 903 East 18th Street,

Suite 230

Plano, Texas 75074

Telephone: (972) 423-3131

Facsimile: (972) 423-6570

Attorneys for Respondent

—— aie

ee ae ee

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Did this Court err when it denied Petitioner’s

writ of certiorari seeking review of the substan-

tive decision in Barrow I?

Did the Fifth Circuit err in upholding its quali-

fied immunity ruling in Barrow I, which was

based solely on precedent clearly established in

the circuit for twenty-five years?

Did the District Court abuse its discretion in

holding “the value of the judgment Barrow ob-

tained, plus the value of Barrow’s pre-offer court

costs and attorney’s fees, exceeded $100,000” and

thus Petitioner’s “Rule 68 offer of judgment does

not entitle him to relief”?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........0..........ccccceseeseeeee i

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APE PRE BEEGIINE LID ce cccccrsccoccsesescccecescsensesss iii

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ie ar EE MUNCIRIIROORENE ..0..0cccccsncccesecccvesecceesecsse 1

I BMIIOOY oad sc cctcccunsassercoccssbscevoassenen 3

son ociidtiasabinddibonidoniaiibadaisinunenes 4

I. The Petition Does Not Present an Impor-

tant Legal Issue on Which There Is Con-

TI iriins icin Sanh seedeinsnavndiceimmnenaneiite 5

A. There Is No Division in the Law nor

Split Among the Circuit Courts of Ap-

A sincinchinchstxogishaddaunnvevavesnibaiebdenaibe 6

B. There Has Been No Change in Fact or

Law Relevant to This Petition Since the

Court Denied Review of Barrow /......... 9

II. Saucier’s “Rigid Order of Battle” Was

Irrelevant to the Outcome of This Case...... 12

III. The Petition Seeks Review of the Fact-

Bound Application of Settled Legal Princi-

ples and the Fifth Circuit Applied the Law-

of-the-Case Doctrine in a Factually Lim-

EG RESTO EPIC GET LE HERES RES 14

IV. The District Court Did Not Abuse Its

Discretion in Awarding Fees ....................... 17

IIIT si sccliceranscensinnsonsaedcaesconocessasdhiciecintbebas 21

ili

TABLE OF AUTHORITIES

Page

CASES

Adams v. Unione Mediterranea di Sicurta, 364

ae I iin iii asin encase gesciidc 19

Agostini v. Felton, 521 U.S. 203 (1997)................. 16

Angstadt v. Midd-West Sch. Dist., 377 F.3d 338

Ce ae Rec Sete natiahcin hactie rales es peieaptomaealiauiarinnnamanseank 7

Arizona v. California, 460 U.S. 605 (1983)................ 16

Associated Builders & Contractors of La., Inc.

v. Orleans Parish Sch. Bd., 919 F.2d 374 (5th

EL IND aianistva ules d haitingnghdlih wi kacibates aaiiniiaenalaiaibbbdscin-onsne. 19

Barrett v. Steubenville City Schs., 388 F.3d 967

(6th Cir. 2004), cert. denied, 546 U.S. 813

> RARE ECR Em aR ee amt PURTCEI PR Tum h Sn 7, 8,10, 14, 17

Basha v. Mitsubishi Motor Credit of Am., Inc.,

S56 F.36 461 (6th Cit, BOOS) oon iccicc ccc csecceeseces 20

Brantley v. Surles, 718 F.2d 1354 (5th Cir.

DRE i iididicvitindakicestecrin scents reesaredy La, 15, 14, 16

Brown v. Hot, Sexy & Safer Prods., Inc., 68

Se Ce Tes SR ii ditiitn senteerccancanunnsetntbinabaninniens 7

Ellis v. Liberty Life Assurance Co., 394 F.3d

I NE oii al co hccesdc aca ensadah Atma dnioptnadiaion 10

Fyfe v. Curlee, 902 F.2d 401 (5th Cir.

PED cai nicehcsdiuildn ckasoipitieaiaieesphlciauabiad aia 9, 12, 13, 14, 15

Hensley v. Eckerhart, 461 U.S. 424 (1983) ........0....... 19

Herndon v. Chapel Hill-Carrboro City Bd. of

Educ., 89 F.3d 174 (4th Cir. 1996) ................ cee eeees 7

IV

TABLE OF AUTHORITIES — Continued

Page

Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000)........ 19

Leebaert v. Harrington, 332 F.3d 134 (2d Cir.

I kaa gt nile ir acca oa os sashes na clecsia ecg henpel, cicdesohiwbesac ales 7

Littlefield v. Forney Indep. Sch. Dist., 268 F.3d

Be a I ida vsti vnc tnboeeina nce écatxeck lavconsectael 6

Meyer v. Nebraska, 262 U.S. 390 (1923).................. 5,7

Montgomery v. Carr, 101 F.3d 1117 (6th Cir.

SOE isha ubice Si viaChtindes iicbthcckah cinicncd Caclaiadasiavadiobindcaapickias 8

Pierce v. Soc’y of Sisters, 268 U.S. 510 (19285) ......... &, 7

Reno v. Flores, 507 U.S. 292 (1993) ..... ce ccccce eee seneee 5

Saucter v. Katz; 533 U.S. 194 (2001)...............:.... 12, 14

Smith v. Barrow, 540 U.S. 1005 (2003)............. passim

Stough v. Crenshaw County Bd. of Educ., 744

Bee ain tas ctkcksuksstnssncassadvisdcsncaaace 8

Troxel v. Granville, 530 U.S. 57 (2000)...................eeeee 5

Zenith Radio Corp. v. Hazeltine Research, Inc.,

I es A rE A icncisesth btacnphcrcheseidctkatakanvavninctaciina 10

STATUTES

eM ts PNM iis i cccxinnnxkocnesiajie ndivaccansonsidonaseussitnndhentelleal 18

Be Pe OD iigestcascdnndiecdsiasnuraedicsassagnmnaiisetsiinee 18

OTHER AUTHORITIES

Civil Justice Expense and Delay Reduction

Plan, Northern District of Texas .....................0..0008 18

1

STATEMENT

Petitioner seeks review from this Court, for the

second time in this case, of whether the courts below

erred when they denied Petitioner qualified immu-

nity after extensive discovery and over fifty volumes

of record in Barrow I and after a two week jury trial

and seventy-four volumes of record in Barrow III.

I. Factual Background

In July of 1998, Karen Jo Barrow’s (hereinafter

“Barrow”) children were enrolled at the Greenville

Christian School, a private religious school. Mrs.

Barrow applied for the Assistant Principal position at

the Greenville Middle School which was open and to

be filled in July of 1998. (R.,Vol. 17, docket item 167

at 918-32, 937-42, 9] 49-60). In May of 1998, at the

direction of Petitioner,’ Joan Graves, a senior school

official, approached Mrs. Barrow and asked her if she

would consider moving her children to the public

schools so that she could be “considered” as an appli-

cant for the assistant principal position. (R.,Vol. 14 at

88-141; Vol. 17 at 918-38). Mrs. Barrow told Mrs.

Graves that she definitely wanted the position but

would not sacrifice her boys’ religious education to get

the job. Jd.

Mrs. Barrow’s name was placed in the pool as an

applicant during a superintendent’s council meeting

on July 13, 1998..(R.,Vol. 16 at 574-641). Petitioner

' Petitioner, Smith, was the school district superintendent.

2

directed the Assistant Superintendent for personnel,

William Smith, to talk to Mrs. Barrow about where

she chose to educate her children and to see if she

would be willing to move her children to the public

schools so she could be considered for the position.

(R.,Vol. 15 at 306-416). Petitioner later admitted to

Susan Crow, the teacher who was hired to fill the

position instead of Mrs. Barrow, that Mrs. Barrow

was not hired because of “where she educated her

children.” (R.,Vol. 16 at 538-60). Petitioner told Mrs.

Barrow and her husband at a personal meeting on

July 30, 1998, that the only reason he did not recom-

mend Mrs. Barrow for the assistant principal position

was because of where she chose to educate her chil-

dren and that she had “no future” at the Greenville

Independent School District (“GISD”) as long as she

chose to educate her children at the Greenville Chris-

tian School (R.,Vol. 17 at 924). GISD admitted in its

EEOC response to Mrs. Barrow’s Title VII claim that

Petitioner refused to consider Mrs. Barrow because of

where she “[chose] to educate her children” and that

it would be a “factor” if she interviewed for a promo-

tion. (Barrow’s R.E. 2; R.,Vol. 17 at 850-54). At trial,

the jury found that a motivating factor in Petitioner’s

decision to refuse to recommend Mrs. Barrow for the

promotion was where Mrs. Barrow educated her

children. (R.E. 9 at 11).

Mrs. Barrow obtained a Judgment against Peti-

tioner for $15,455.00 in compensatory damages and

$20,000.00 in punitive damages and prejudgment

interest. Upon her application for attorney fees, the

district court awarded Mrs. Barrow some of her fees

and taxable court costs. (R.E. 14).

3

II. Proceedings Below

Upon Petitioner’s refusal to recommend Mrs.

Barrow for the promotion because she failed to com-

ply with a “public school only” patronage employment

condition, Mrs. Barrow filed suit against GISD and

Petitioner alleging, inter alia, that Petitioner violated

Mrs. Barrow’s constitutional right as a parent to

choose private education for her children by denying

her a recommendation for a promotion because she

refused to comply with the “public school only” em-

ployment condition. (R.,Vol. 1 at 1-19).

The district court’s summary judgment for Peti-

tioner on qualified immunity was reversed by the

Fifth Circuit in Barrow I. This court denied cert.

Smith v. Barrow, 540 U.S. 1005 (2003). The claims

against Petitioner were tried to a jury. The jury

rendered a verdict against Petitioner. (R.E. 9; R.

4635). The district court entered Judgment for Mrs.

Barrow against Petitioner. (R.E. 511). All parties filed

post-judgment motions. (R. 5103). The district court

denied the motions. (R.E. 12). The court awarded

Mrs. Barrow some of the attorneys fees she sought

and denied others. (R.E. 14).

Petitioner filed a timely Notice of Appeal and

Mrs. Barrow filed a timely cross Notice of Appeal.

(Barrow’s R.E. 1). The Fifth Circuit Court of Appeals

in a unanimous unpublished opinion affirmed the

judgment of the district court. Pet. App. 24.

r

vy

4

ARGUMENT

The petition seeks review of a fact-bound case

that consists of over seventy-four volumes of record

and almost ten years of litigation. The case’s central

issue, and that of the petition — whether it is clearly

established law that a government official may not

deny a job applicant a promotion because she chooses

private education for her children — already has been

litigated in this case once before this Court, twice

before the Fifth Circuit and at least nine times in the

District Court in separate motions and filings. See

Record Vol. 57, pp. 3552, 3556-61 and court order at

3587 (instructing Petitioner to stop raising the issue

of qualified immunity); Vol. 59, pp. 4061-7; Vol. 61,

pp. 4544, 4563-66; Vol. 60, pp. 4240-41; Vol. 62, pp.

4715-19; Vol. 60, pp. 4202-09; Vol. 62, pp. 4730, 4740-

45; Vol. 63, pp. 4747, 4758-75 and pp. 5118-21.

There has never been a single appellate judge in

this case who expressed an opinion that Petitioner

should prevail. Barrow I and Barrow IIT were unani-

mous and after both Fifth Circuit decisions, Peti-

tioner sought en banc review. No judge on the Fifth

Circuit ever requested that the court even be polled

on rehearing en banc in either appeal. This Court

denied Petitioner’s petition after Barrow I. The

current petition, which seeks a review of an unpub-

lished decision with no precedential value, is nothing

more than an attempt to re-litigate the qualified

immunity question once again and this petition

should also be denied. Not surprisingly, Petitioner’s

alleged split is illusory. And the petition itself only

5

rehashes, with no relevant change in fact or law,

substantially the same claims and arguments which

Petitioner presented to this Court four years ago in

unsuccessfully seeking review of Barrow I. In addi-

tion, Petitioner has requested this Court correct

alleged error in the district court’s calculation and

award of attorney fees. It is not this Court’s practice

to reconsider the same claims and issues in the same

case on the same record, nor is this Court one of error

correction. Petitioner, nonetheless, seeks this Court’s

review.

I. The Petition Does Not Present an Impor-

tant Legal Issue on Which There Is Con-

flicting Authority

Other than a rather odd claim that Barrow I

conflicts with precedent established by this Court,’

and presumably this Court erred by not reviewing

Barrow I, the only conflict analysis arguing a circuit

split is contained in the brief assertions on pages 16

and 17. In these two pages, Petitioner cites to a string

citation of cases, with only three or four cases post-

Troxel. This is not much “confusion” and certainly

* The right of a parent to choose private or public education

for her children has been a “fundamental right” for over eighty

years, and fundamental rights require strict scrutiny. See Reno

v. Flores, 507 U.S. 292, 301-02 (1993) (scrutiny for “fundamen-

tal” rights is strict scrutiny); Meyer v. Nebraska, 262 U.S. 390,

401 (1923) (the right of a parent to control the education of her

child is a “fundamental right”); Pierce v. Soc’y of Sisters, 268

U.S. 510, 534-35 (1925).

6

this scant analysis is not indicative of a major split on

an important and discrete area of the law. Petitioner’s

main argument for a split appears to rest on the

premise ‘that the Fifth Circuit is split within itself,

yet no judge on the Fifth Circuit thought the holding

in Barrow I or Barrow III was worthy of reconsidera-

tion or review.’

A. There Is No Division in the Law nor Split

Among the Circuit Courts of Appeals

Petitioner presents no credibie division in the

law. Petitioner’s primary argument for a split among

the Circuit Courts of Appeals appears to consist of a

largely undeveloped and conclusory statement that

Fifth Circuit “decisions” have created “conflict with

the precedents of numerous other courts of appeals”

combined with a lengthy string cite reduced to a

footnote. Pet. 16 & 16 n.2. Not a single case included

in the string cite is even remotely on point. Each of

the cases concern parents’ and students’ dissatisfac-

tion either with the educational requirements and

administration of public education, statewide educa-

tion standards, the availability of public education

services or complaints about uniforms or student

clothing. None deal directly or indirectly with a

parent’s right to choose for her children a particular

* Petitioner’s complaint that Littlefield and Barrow conflict,

even if true, is simply more incentive for this Court to deny

review. The Court should deny review and wait until the Fifth

Circuit has resolved this alleged conflict within its own circuit.

7

means of education, here private school over public

school, much less the application of that right in a

public education employment context. They concern,

instead, parents claiming the “rights” for their chil-

dren to avoid health class and mandatory community

service and to play interscholastic sports. See, e.g.,

Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003);

Herndon v. Chapel Hill-Carrboro City Bd. of Educ.,

89 F.3d 174 (4th Cir. 1996); Angstadit v. Midd-West

Sch. Dist., 377 F.3d 338 (3d Cir. 2004). Interestingly,

at least two of the cases cited expressly recognize the

difference between the administration of public

education and a parent’s right to decide whether to

use public education at all. Brown v. Hot, Sexy &

Safer Prods., Inc., 68 F.3d 525, 533-34 (1st Cir. 1995)

(finding it “fundamentally different,” in the court’s

discussion of Meyer and Pierce, “for the state to say to

a parent, ‘You can’t teach your child German or send

him to a parochial school,’ than for the parent to say

to the state, ‘You can’t teach my child subjects that

are morally offensive to me.’”); Angstadt, 377 F.3d at

344 (differentiating between regulations governing

interscholastic sports and parents’ “ability to educate

their daughter in the manner they choose.”).

Petitioner fails to cite the only cases from the

other Circuit Courts of Appeals that are directly on

point. There are only two. In Barrett v. Steubenville

City Schs., 388 F.3d 967 (6th Cir. 2004), cert. denied,

546 U.S. 813 (2005), a school superintendent refused

to hire a teacher unless the teacher removed his child

from private school and enrolled him in public school.

The Sixth Circuit found this violated the teacher’s

8

constitutional right to direct the upbringing of his

child and affirmed the order denying the superinten-

dent qualified immunity.‘ In Stough v. Crenshaw

County Bd. of Educ., 744 F.2d 1479 (11th Cir. 1984), a

patronage policy adopted by the county school board

prohibited its teachers from enrolling their children

in private schools on penalty of termination. The

Elégenth Circuit affirmed the judgment in favor of

the teachers, finding that the policy impermissibly

interfered with the teachers’ constitutional right to

control the education of their children.

In sum, an assertion that there exists a division

in the law is difficult to support when all of the cases

purportedly demonstrating the division fail even to

address the issue in question. As for the cases that

are on point, arrival at the same conclusion for the

same issue on virtually identical facts hardly denotes

a split in the circuits. Even had the cases on point

arrived at separate conclusions, as only two other

circuits have even broached the issue with only one

case in each circuit, the law could hardly be consid-

ered developed to the point where it is ripe for review

‘ The Sixth Circuit, like the Fifth Circuit, did not find it

necessary to articulate a level of scrutiny because if the “motiva-

tion for a public official in taking some adverse employment

action against a public employee is the public employee's

protected activity, then regardless of the level of scrutiny

applied, such action is unconstitutional.” Steubenville, 388 F.3d

at 973 (quoting Montgomery v. Carr, 101 F.3d 1117, 1127 (6th

Cir. 1996)).

9

by this Court..This case presents no division or split

in the law for this court to review.

B. There Has Been No Change in Fact or

Law Relevant to This Petition Since the

Court Denied Review of Barrow I

There has been no relevant change to the record

since the Court denied review of Barrow I.’ Petitioner

does, however, attempt to create such a change.

Petitioner failed to plead and produce through dis-

covery a number of the “facts” he proffers to this

Court. See Pet. 19-20. The District Court held, just

before trial, that he was thus precluded from offering

these “facts” at trial to support a claim that Mrs.

Barrow’s choice of private education “impedes the

operation or effectiveness of the state’s educational

program.” Pet. App. 238-41. In fact, the school district

admitted that Mrs. Barrow’s exercise of her right to

choose private education for her children did not

impede the operation or effectiveness of the state’s

educational program in its answer and first amended

answer. Pet. App. 240.

° Barrow I relied upon Brantley and Fyfe and as the Barrow

IIIT court noted, neither of those cases involved a “religious

element.” Pet. App. 20. Petitioner argues that the absence of a

religious claim at this point in the case somehow should change

the analysis of Barrow I. However, the clearly established law

upon which Barrow I was based contained NO religious claims

but purely parental rights claims. Barrow III agreed that no

religious component was necessary.

10

This means that Petitioner’s factual position

from Barrow I to Barrow III never changed. In Bar-

row I, after extensive discovery and voluminous

filings, the Fifth Circuit noted that Petitioner had no

evidence of any disruption at all — and that was in

_ 2003. Pet. App. 277-78. In 2005, on the eve of trial,

Petitioner sought to present the “facts” he now relies

upon in his petition to this Court before the jury. The

district court, in its discretion, denied his request.°

There are, however, two intervening events

worthy of consideration. The first is that a duly

empanelled jury, led by a school board member of a

nearby school district as foreman, awarded Mrs.

Barrow compensatory and punitive damages against

Petitioner, finding that he denied Mrs. Barrow the

promotion because she educated her children in

private school and that he knew he could be violating

the law by doing so. Trial Testimony V.4, p. 197-98.

The second is the Court’s denial of certiorari in Bar-

rett v. Steubenville City Schs., 388 F.3d 967 (6th Cir.

2004), cert. denied, 546 U.S. 813 (2005), a case virtu-

ally identical to Barrow in fact, issue and outcome.

See Section I-A, supra.

° This case is thus not an appropriate vehicle for deciding

any of these fact issues raised because it is factbound and

procedurally entangled. It was well within the district court’s

discretion to deny Petitioner leave to amend his Answer after

years of litigation and appeals. See Zenith Radio Corp. uv.

Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Ellis v.

Liberty Life Assurance Co., 394 F.3d 262, 268 (5th Cir. 2004).

11

The substance of the present petition is re-

markably similar to Petitioner’s original petition for

certiorari in Barrow I, which this Court declined to

review. Smith v. Barrow, 540 U.S. 1005 (2003). In his

original petition, Petitioner argued that the relevant

law was “not clearly established.” Barrow I Pet. 5-6,

8-21. In the present petition he argues that the

relevant law is not clearly established. Pet. 22-26. In

his original petition he claimed there was a circuit

split. Barrow I Pet. 6, 25-26. In this petition he claims

there is a circuit split. Pet. 16-17. In his original

petition he claimed that Fifth Circuit precedent

conflicts with that of this Court. Barrow I Pet. 6-7. In

this petition he claims that Fifth Circuit precedent

conflicts with that of this Court. Pet. 12-14.

Even the questions presented cover the same

ground. In his original petition the substance of the

two questions presented was, respectively, the fact-

bound analysis of parental rights versus a public

school’s right to regulate its employees, and whether

Petitioner was wrongly denied qualified immunity.

Barrow I Pet. i. In this petition the substance of the

first two questions presented are, respectively, the

fact-bound analysis of parental rights versus a public

school’s right to regulate its employees, and whether

Petitioner was wrongly denied qualified immunity.

Pet. i. The only substantial difference between the

petition for certiorari in Barrow I and the present

petition is that Petitioner now wants this Court to

correct alleged error in the district court’s calculation

and award of attorney fees, as well.

12

Petitioner fails to include even one intervening

development in law or fact between Barrow I and

Barrow III that justifies this Court’s review of Barrow

Ill. Review of Barrow III would be identical to a

review of Barrow I, which, again, was denied by this

Court in 2003. Considering the jury’s factual findings,

the substantially identical nature of this petition to

the petition this Court denied review in Barrow I and

this Court’s refusal to review a case from a sister

circuit almost identical in fact, issue and outcome,

there appears little incentive to grant review in this

the Petitioner’s second request based on any devel-

opment in law or fact.

II. Saucier’s “Rigid Order Of Battle” Was

Irrelevant to the Outcome of This Case

Application of the Saucier v. Katz, 533 U.S. 194

(2001), “rigid order of battle” was a nonfactor both in

Barrow I and Barrow III. In both instances, the Fifth

Circuit relied solely upon Brantley v. Surles, 718 F.2d

1354 (5th Cir. 1983), and Fyfe v. Curlee, 902 F.2d 401

(5th Cir. 1990), unanimous Fifth Circuit cases directly

on point and covering twenty-five years of jurispru-

dence, to determine whether a constitutional violation

had been clearly established. The analysis in Barrow I

merely summarized this Fifth Circuit precedent to

affirm a constitutional violation had been alleged,

withholding its substantive analysis for determining

whether that right was clearly established at the time

Petitioner denied Mrs. Barrow her promotion. Pet. App.

274-78. Barrow III affirmed, similarly relying solely on

13

that same precedent and the findings of Barrow I to

quickly dispense with whether a constitutional viola-

tion had been alleged and spend its substantive

analysis on other issues. Pet. App. 11-13. In neither

case was any substantive analysis spent on whether

violation of a constitutional issue had been alleged.

Instead, both in Barrow I and Barrow III, the Fifth

Circuit made this determination solely by relying

upon clearly established Fifth Circuit precedent

involving the exact discrete issue presented. Pet. App.

6 (“In reaching our decision to reverse in Barrow I, we

relied heavily on two of this court’s previous opinions:

Brantley v. Surles, 718 F.2d 1354 (5th Cir. 1983), and

Fyfe v. Curlee, 902 F.2d 401 (5th Cir. 1990).”).

Petitioner tries to argue that the lack of success

on a religious claim should change the result in this

case. But the decisions cementing the clearly estab-

lished law had nothing to do with religion. In

Brantley, “there was no suggestion that the plaintiff’s

decision to send her son to private school was based

on religion.” Pet. App. 7. The court in Brantley,

twenty-five years ago, held that in the public school

environment, school officials could not take adverse

employment actions against public school employees

because of where the employee chooses to educate her

children. Similarly in Fyfe, the plaintiff’s “reasons for

selecting a private education for her child were unre-

- lated to religion.” Pet. App. 8. Petitioner’s attempt to

avoid the jury verdict and the clearly established law

of the Fifth Circuit for twenty-five years is not credi-

ble.

14

Because there was direct precedent within the

Fifth Circuit, Barrow I was an easy call for the court.

The law was clearly established for decades, as was

also confirmed in Barrow I and Barrow III. There is

no “two step” Saucier issue in this case. There was a

violation, as found by the jury, and the law on point

was clearly established by cases within the circuit for

twenty-five years. Additionally, this case is a proce-

durally-tangled vehicle involving an extremely fact-

bound application of the law-of-the-case doctrine,

with no broader legal significance. Barrow III is

presumably unpublished for that very reason. This

Court has already denied review once in this case on

the substantive issue and indeed has since denied

review on an identical issue in Steubenville.

The Saucier “order of battle” played no role in the

outcome of either Barrow I or Barrow III. As such,

Barrow ITT should not be held for any determination

of that issue.

III. The Petition Seeks Review of the Fact-

Bound Application of Settled Legal Princi-

ples and the Fifth Circuit Applied the Law-

of-the-Case Doctrine in a Factually Limited

Manner

The unpublished decision of Barrow III applies

the law-of-the-case doctrine in a factually limited

manner. Barrow I relied upon Brantley and Fyfe and

as the Barrow III court noted, neither of those cases

involved a “religious element.” Pet. App. 20. It was

well settled law at all times relevant to this case that

15

a school employee's decision to educate her children

in private school, whatever the motivation, was a

protected right that could only be interfered with

upon a showing by the school officials that the exer-

cise of that right caused a material and substantial

disruption. Brantley v. Surles, 718 F.2d 1354 (5th Cir.

1983); Fyfe v. Curlee, 902 F.2d 401 (5th Cir. 1990).

Given the longstanding history of the articulation of

that right and the burden of proof, Petitioner still

failed to plead and provide evidence during the dis-

covery period to support a finding of material and

substantial disruption. When Petitioner sought to

amend his pleadings on the eve of trial, the district

court denied him leave to do so and procedurally

denied Petitioner the ability to present evidence of a

disruption, which is why Petitioner cites to his Bill of

Exception for outlandish “facts.” Petitioner has not

even preserved his Bill of Exception at this stage. The

“facts” Petitioner relies on were not admitted at trial

because Petitioner failed to plead disruption as a

defense in a timely fashion.

The main thrust of Petitioner is a re-argument of

Barrow I| and his dissatisfaction with this Court’s

denying review of his original petition for certiorari.

The unpublished decision of Barrow III applies the

law-of-the-case doctrine in a factually limited man-

ner. Barrow I relied upon clear Fifth Circuit prece-

dent that has been established for over twenty-five

years and was well settled law at all times relevant to

this case. See Section II, supra. And as Barrow III

noted, Petitioner’s claims on appeal did not affect or

change the relevant analysis and conclusions of

16

Barrow I. Pet. App. 20. As such, the Fifth Circuit’s

discretionary and reasonable application of the law-

of-the-case doctrine, affirming the analysis of Barrow

I, should not be reopened, now after a jury trial, as it

was not “clearly erroneous” nor did it “work a mani-

fest injustice.” Agostini v. Felton, 521 U.S. 203, 236

(1997) (quoting Arizona v. California, 460 U.S. 605,

618 n.8 (1983)). Any disturbance in Barrow III of the

earlier qualified immunity question would have

required the Fifth Circuit to ignore the factual find-

ings of the jury and twenty-five years of clearly

established precedent.

The only essential facts of this case presumed in

Barrow I was that Petitioner considered Mrs. Bar-

row’s educational choice for her children when deny-

ing her a promotion. Petitioner maintained at trial

that he never considered Mrs. Barrow’s educational

choice for her children when denying her a promotion,

despite the oVerwhelming evidence and testimony

from various school officials to the contrary. Trial

Transcript V.4, p. 217-18, 219-20; V.1, p. 223-24; V.2,

p. 185-86, 188. As of Barrow III, a jury had decided

that Petitioner had indeed rejected Mrs. Barrow for a

promotion because she educated her children in

private school and that Petitioner “acted although he

perceived a risk that his actions would violate Bar-

row’s rights.” Pet. App. 228-29.

Petitioner also claimed at trial that he thought

he was not violating the law. Trial Transcript V.4, p.

193-94. Indeed, in Barrow I, the Fifth Circuit had the

benefit of several affidavits from professional educa-

tors saying they did not think it was a violation of the

17

law. Pet. App. 280 n.19. The Fifth Circuit denied

Petitioner qualified immunity and this Court denied

review. However, a subsequent jury found that Peti-

tioner denied Mrs. Barrow a promotion even though he

subjectively perceived a risk that his actions would

violate Mrs. Barrow’s rights. Pet. App. 229. As a result,

the jury awarded punitive damages for Petitioner’s

reckless decisions. Petitioner’s position weakened after

the jury trial.

An independent problem rendering this case yet

a more problematic vehicle for deciding issues is the

jury finding that Petitioner “acted although he per-

ceived a risk that his acts would violate Barrow’s

rights,” Pet. App. 228-29, and assessing punitive

damages against him. This jury finding cuts against

any claim of qualified immunity as the standard for

punitive damages in a civil rights case is higher than

that required to deny qualified immunity. Petitioner,

however, has failed to challenge this finding. There-

fore, the Fifth Circuit’s discretionary and reasonable

application of the law-of-the-case doctrine was appro-

priate as no new facts helpful to Petitioner were

found by the jury and no new case law emerged from

this Court or any other court, save this Court’s denial

of review in Steubenville.

IV. The District Court Did Not Abuse Its Dis-

cretion in Awarding Fees

In yet another attempt to manufacture a reason

for review, it is disappointing that Petitioner’s des-

peration led him to cite, quote and provide in the

18

appendix a confidential ADR proceeding, voluntarily

submitted to by all parties, for the purpose of trying

to settle the case. According to The Civil Justice

Expense and Delay Reduction Plan (the “Plan”) “(alll

communications made during ADR procedures are

confidential and protected from disclosure ...” Misc.

Order 46, Civil Justice Expense and Delay Reduction

Plan, U.S. District Court for the Northern District of

Texas, at 6 (rev. May 2002). The settlement confer-

ence ordered by the district court was under the

authority of the ADR procedures and the Plan,

q{ (IIIC) and (IV). Thus, the settlement “report” by

Judge Sanders is confidential. In addition, the federal

Alternative Dispute Resolution Act of 1998 makes it

clear that the Sanders settlement “Report” should not

have been disclosed. 28 U.S.C. § 652(d). Furthermore,

even if a neutral (Sanders) or party violates this

prohibition, the disclosed dispute resolution commu-

nication — the Report — “shall not be admissible in

any proceeding relating to the issues in controversy

with respect to which the communication was made.”

5 U.S.C. § 574(c).

Petitioner’s attempt to create a certworthy issue

by breaching confidentiality ultimately fares no

better than his attempt to create a circuit split that

does not exist. Damaging to this institution and the

practice of law, such a breach further underscores the

tenacious battle of this almost decade old case, the

lengths to which Petitioner will go to manufacture a

rationale for review, and why review should be de-

nied. This would include Petitioner’s mysterious

reference to Judge Lindsay who has never been a

19

judge on this case merely as a way to attack one of

the attorneys for Mrs. Barrow. Pet. 36. Petitioner’s

“scorched earth” defense strategy over nine years to

cause Mrs. Barrow to quit did not work and the jury

ruled against him. Now, he wishes to avoid all of the

consequences of his approach and thus seeks review

over fees.

With respect to attorney fees, “whether the

reported hourly rate is reasonable and whether the

reported tasks are duplicative or unrelated to the

purposes of the law suit” is a factual question for the

district court. Associated Builders & Contractors of

La., Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 379

(5th Cir. 1990). Such “{uJnderlying questions of fact

are reviewed for clear error.” Adams v. Unione

Mediterranea di Sicurta, 364 F.3d 646, 656 (5th Cir.

2004); Hensley v. Eckerhart, 461 U.S. 424, 436-37

(1983). The “concept that a district court has broad

discretion in determining the amount of a fee award”

cannot be “overemphasize[d].” Associated Builders,

919 F.2d at 379. As “[ajppellate courts have only

limited opportunity to appreciate the complexity of

trying any given case” such discretion is appropriate.

Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000).

The Fifth Circuit relied upon Judge Fitzwater’s

thorough analysis of the record and found he did not

abuse his discretion. Petitioner, likewise, has failed to

present evidence of clear error.

Like attorney fees, a “district court's findings

regarding the factual circumstances under which Rule

68 offers and judgments are made ... are reviewed

20

under the clear error standard.” Basha v. Mitsubishi

Motor Credit of Am., Inc., 336 F.3d 451, 453 (5th Cir.

2003). Petitioner claims that the district court “re-

fused to apply” Rule 68. Pet. 40. What the district

court found, however, was that Petitioner’s offers of

judgment were ineffective. Pet. App. 24. Petitioner

includes only his $100,000.00 offer of judgment for

review. The Fifth Circuit was correct that it was not

clear error or abuse of discretion for the district court

to refuse substantially to reduce Barrow’s applicable

attorney fees at the time of this offer. Pet. App. 24.

Petitioner offers no substantial evidence to the con-

trary, and certainly none that demonstrates clear

error.

This petition is all about attorney fees, which are

decided under the abuse of discretion standard by the

judge most intimately familiar with the attorneys and

the case. No split of authority is alleged concerning

the rejection of Petitioner’s Rule 68 offer of judgment

both by the district court and the Fifth Circuit. This

is nothing more than a petition for error correction.

°

21

CONCLUSION

This petition for a writ of certiorari for Barrow

Ill is substantially the same as the petition for Bar-

row I, which this court denied review. This petition

should be denied as well.

Respectfully submitted,

KELLY J SHACKELFORD

Counsel of Record

Hiram S. Sasser, IIT

ROGER L. BYRON

LIBERTY LEGAL INSTITUTE

903 East 18th Street, Suite 230

Plano, Texas 75074

Telephone: (972) 423-3131

Facsimile: (972) 423-6570

Wm. CHARLES BUNDREN

2591 Dallas Parkway, Suite 300

Frisco, Texas 75034

Telephone: (972) 624-5338

Facsimile: (972) 624-5340

Attorneys for Respondent '