Amicus Curiae Brief — Victoria Independent School District v. Harris

NOV 4 1999

OF THE OLERK

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No. 99-588

In The

Supreme Court of the United States

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VICTORIA INDEPENDENT SCHOOL DISTRICT, et al.,

Petitioners,

DWIGHT HARRIS and GENE MARTIN,

Respondents.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

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AMICUS BRIEF IN SUPPORT OF PETITIONERS

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Davip J. LABREc

Counsel of Record

Katie ANDERSON

KATHRYN PETERSON

STRASBURGER & Price, L.L.P.

901 Main Street, Suite 4300

Dallas, Texas 75202

(214) 651-4300 (phone)

(214) 651-4330 (facsimile)

Counsel for Texas Association of

School Boards and National School

Boards Association

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE

Texas Association of School Boards Legal Assistance

Fund (“The Fund”) and the National School Boards Asso-

ciation (“NSBA”) hereby respectfully move for leave to

file the attached brief amicus curiae in this case. The

consent of the attorney for each Petitioner has been

obtained. The consent of the attorney for the Respondent

was requested but refused.

The interest of the Fund in this case arises from the

fact that it represents over 750 school districts in Texas

who could be adversely affected by the majority opinion

of the Fifth Circuit Court of Appeals, which significantly

expands the definition of First Amendment speech

involving a matter of public concern and denied qualified

immunity to Petitioners by finding the Constitutional

issues were clearly established despite the notable

absence of any authority in existence at the time of Peti-

tioners’ allegedly wrongful conduct.

NSBA represents the nation’s 95,000 school board

members, who govern more than 15,000 local school dis-

tricts that serve more than 46.5 million public school

students - approximately 90 percent of all elementary and

secondary school students in the nation. NSBA has had a

longstanding interest in the effective development and

implementation of local school board policies, including

those touching on the First Amendment and free speech.

In the instant case, Petitioners set forth legal argu-

ments supporting the position that Respondents’ speech

addressed matters of private, not public, concern. The

brief which amicus curiae is requesting permission to file

will demonstrate the errors of the Fifth Circuit in decid-

ing this issue and provide a more comprehensive analysis

of the importance of this constitutional issue to school

districts.

Respectfully submitted,

Davip J. LaBrec

Counsel of Record

Katie ANDERSON

KATHRYN PETERSON

STRASBURGER & Price, L.L.P.

901 Main Street, Suite 4300

Dallas, Texas 75202

(214) 651-4300

(214) 651-4330 (Telecopier)

Counsel for Texas Association

of School Boards Legal

Assistance Fund and National

School Boards Association

TABLE OF CONTENTS

Page

Statement of Interest of Amicus Curiae ............ 1

SD oy ikd eo Kheis Kade kWindexcdime nn 2

EM er err rer er errr reer ere eee 3

I. The Fifth Circuit improperly broadened the defi-

nition of speech involving a matter of public

| Pe PET oRE COLE PEGE EC EE ET CELE eee 3

A. The Fifth Circuit failed to apply the “citizen

versus employee” distinction in analyzing the

subject matter of Respondents’ speech ...... +

B. The Fifth Circuit improperly applied the test

of content, form, and context in determining

the nature of Respondents’ speech........ >

PS care ciyWerwse ds al cas das ones 64 5

lh Ae ree eee oe eee 6

EE sar koe cacksseeeaikapude arcade 7

II. The Fifth Circuit erred by requiring the district

a eee 10

III. The Fifth Circuit erred by denying qualified

ee, ee 13

a Lua ak a we deh Boo 15

ii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 13

Benningfield v. City of Houston, 157 F.3d 369 (5th

Cot ED ed odsevdee ania ck aaeeaknasas Cesdueeeaceeen 6

Board of the County Commissioners of Bryan County,

Oklahoma v. Brown, 520 U.S. 397 (1997)............ 15

Connick v. Myers, 461 U.S. 138 (1983)......... 4, 5, 6, 13

Dahm v. Flynn, 60 F.3d 253 (7th Cir. 1994)........... 14

Egger v. Phillips, 710 F.2d 292 (7th Cir. 1983), over-

ruled on other grounds, Feit v. Ward, 886 F.2d 848

eo fe Se ere ee rr ere en ar. rer re 8

Ferrara v. Mills, 781 F.2d 1508 (11th Cir. 1986)...... 8,9

Givahn v. Western Line Consol. Sch. Dist., 439 U.S.

ee kx oe es eek ree ee ae eee 6

Gonzales v. Benavides, 774 F.2d 1295 (5th Cir. 1985),

cork. Gomied, Fo 41... TAG COR ven kkk aw ievcndeas 14

Greenberg v. Kmetko, 922 F.2d 382 (7th Cir. 1991).....

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............. 13

Harris v. Victoria Indep. Sch. Dist, 168 F.3d 216 (5th

ee Pere re rer ry err rey rer ey re 43 7,9

Harris v. Victoria Indep. Sch. Dist., No. 97-41015,

1999 U.S. App. LEXIS 18305 (5th Cir. July 6,

PER xxkahawacecden kee chicas ae ene tenukas 12

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

CO He sc kcudhawete ceases ret dakane eee 7

iii

TABLE OF AUTHORITIES - Continued

Johnston v. Harris County Flood Control Dist., 869

F.2G 1565 (SOR Gos. 1909). oc cccccaccascccecasccs

Khuans v. School Dist, 123 F.3d 1010 (7th Cir. 1997)

TUVCTECE TCT Seer er rr rene Pore T 6, 9, 10, 11, 12

Moore v. Mississippi Valley State Univ., 871 F.2d 545

ee SA es ba ine rdcnnycesdaneesaen ers

Noyola v. Texas Dep’t of Human Resources, 846 F.2d

Pemen Gee a WHC boca cag asnedasncaeaeces

Pickering v. Board of Ed. of Township High School

Dist. 205, Will Cty., 391 U.S. 563 (1968) ....10, 11, 12

Wales v. Board of Educ., 120 F.3d 82 (7th Cir. 1997). .

Wallace v. Texas Tech Univ., 80 F.3d 1042 (5th Cir.

| Ee ee ee rE er Pedra atts pM ae NW

Waters v. Churchill, 511 U.S. 661 (1994)...........

Wilson v. U.T. Health Center, 973 F.2d 1263 (5th Cir.

|) ere rar rr rer re rms ie oo

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus Curiae, the Texas Association of School

Boards Legal Assistance Fund (“The Fund”) and National

School Boards Association (“NSBA”), submit this brief

urging the Court to reverse the decision of the court

below.? If upheld, the appellate court’s opinion will allow

disgruntled school employees carte blanche to undermine

their supervisors in the name of free speech over matters

not of general public concern.

Nearly 750 public school districts in Texas are mem-

bers of the Fund, which advocates the positions of local

school districts in litigation with potential state-wide

impact. The Fund is governed by three organizations: The

Texas Association of School Boards (TASB), the Texas

Association of School Administrators (TASA), and the

Texas Council of School Attorneys (CSA). Because they

are concerned about the negative impact of the court of

appeals’ decision, the Fund has paid all costs associated

with the preparation of this brief.

TASB is a non-profit, unincorporated association of

public school districts in Texas. Approximately 1,047

school districts, through their elected boards of trustees,

have joined TASB.

TASA represents school superintendents and other

administrators who are responsible for carrying out the

educational policies adopted by their local boards of

1 Counsel for a party did not author this brief in whole or in

part. No person or entity, other than Amicus Curiae, its members,

or its counsel made a monetary contribution to the preparation

and submission of this brief.

trustees. CSA is composed of attorneys who represent

more than 90% of the public school districts of Texas.

The Fund submits this brief out of concern for more

than 7,000 school campuses across the state which man-

age their employees efficiently and provide education to

Texas children.

Founded in 1940, NSBA is a not-for-profit federation

of state associations of school boards across the United

States and the school boards of the District of Columbia,

Guam, Hawaii, and the U.S. Virgin Islands.

NSBA represents the nation’s 95,000 school board

members, who govern more than 15,000 local school dis-

tricts that serve more than 46.5 million public school

students - approximately 90 percent of all elementary

and secondary school students in the nation. NSBA has

had a longstanding interest in the effective development

and implementation of local school board policies,

including those touching on the First Amendment and

free speech.

SUMMARY OF ARGUMENT

The Fifth Circuit now treats all teacher complaints as

matters of public concern. Complaints of this nature have

never before been characterized as such. The court erred

in requiring Petitioners to prove actual disruption and in

denying qualified immunity to Petitioners.

¢

ARGUMENT

I. The Fifth Circuit improperly broadened the defini-

tion of speech involving a matter of public concern.

The Fifth Circuit’s decision empowers school

employees to criticize a supervisor in the name of free

speech and public concern because, in this instance, they

are on a committee “involved in attempts to raise the

level of education.”

The Fifth Circuit has never before held that an

employee’s criticism of a supervisor constitutes a matter

of public concern. Previous Fifth Circuit opinions have

expressly refused to extend the protection of the First

Amendment to such comments, holding instead that

employees’ speech is of public concern only in cases

involving the report of corruption or wrongdoing to

higher authorities.4

Here, the Fifth Circuit departed from its own prece-

dent by holding that teachers serving on a school

improvement committee were entitled to both voice criti-

cisms of their principal during a committee meeting and

to disseminate a memorandum criticizing the principal.

The court concluded that this conduct was protected

speech because they “faced the choice of either telling the

truth and fulfilling their duties as committee members or

keeping silent and frustrating their purpose and function

2 Harris v. Victoria Indep. Sch. Dist, 168 F.3d 216, 222 (5th Cir.

1999).

3 See id. at 225 (Smith, J., dissenting).

4 Wallace v. Texas Tech Univ., 80 F.3d 1042 (5th Cir. 1996).

on the committee.”> By failing to consider the content,

context, and form, the court would allow employees to

speak openly on internal matters not of public concern.

Public ridicule of a supervisor to other teachers not

involved in the dispute serves only the purpose of dis-

rupting school administration.

A. The Fifth Circuit failed to apply the “citizen

versus employee” distinction in analyzing the

subject matter of Respondents’ speech.

When an employee speaks upon “matters of only

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

allegedly in reaction to the employee’s behavior.”© The

“citizen versus employee” distinction is designed to

allow public employees to participate in public affairs.”

The history of First Amendment cases and involving

public employees began as an attempt to allow public

employees to join political organizations without fear of

discharge.® Although this Court has since extended such

protection, the “citizen versus employee” distinction

remains.

Respondents’ speech occurred at a meeting attended

only by district employees and a hired consultant. They

5 Harris, 168 F.3d at 222.

6 Connick v. Myers, 461 U.S. 138, 147 (1983).

7 See id. at 144.

8 See id.

then put a memorandum in teachers’ mailboxes calling

the principal a vindictive bully who was unable to make

decisions, and demanded her resignation. They had no

interest other than as disgruntled employees.

Job satisfaction is not a fundamental right. Because

the Fifth Circuit failed to correctly apply the “citizen

versus employee” distinction, it improperly found that

Respondents were speaking on a matter of public con-

cern.

B. The Fifth Circuit improperly applied the test of

content, form, and context in determining the

nature of Respondents’ speech.

“Whether an employee’s speech addresses a matter

of public concern must be determined by the content,

form, and context of a given statement.”? Although the

Fifth Circuit reiterated the correct test, it defined each

element too broadly, resulting in an unworkable stan-

dard.

1. Content

The content of Respondents’ speech involved

internal management issues. The Fifth Circuit has

never before held that internal management issues

and employee grievances are matters of public concern.

Performance and morale at work are matters of private

9 Connick, 461 U.S. at 147.

10 Harris, 168 F.3d at 225 (Smith, J., dissenting).

concern.!! For example, a teacher’s complaints that her

supervisor was difficult to communicate with and was

hostile and argumentative are not matters of public con-

cern.!2

Speech that involves a matter of pubiic concern

includes serious complaints about issues that have “soci-

etal ramifications,” such as racial discrimination;'> sexual

harassment;!4 corruption;'5 and tampering with govern-

ment documents. !¢

The speech here involved complaints about perfor-

mance (poor job implementing the improvement plan)

and managerial style (bullying and vindictive). Such com-

plaints do not have the same “societal ramifications” as

allegations of theft, racial discrimination, and sexual

harassment.

2. Form

Citing cases only involving public employees’ sworn

courtroom testimony, the Fifth Circuit characterized

Respondents’ speech as a “truth-seeking process.” Here,

Respondents were not giving sworn testimony in court.

1) See Moore v. Mississippi Valley State Univ., 871 F.2d 545

(5th Cir. 1989); Connick, 461 U.S. at 148-49.

12 See Khuans v. School Dist., 123 F.3d 1010 (7th Cir. 1997).

13 Givahn v. Western Line Consol. Sch. Dist., 439 U.S. 410,

415-16 (1979).

14 Wilson v. U.T. Health Center, 973 F.2d 1263 (Sth Cir. 1992).

1S Wallace v. Texas Tech. Univ., 80 F.3d 1042 (5th Cir. 1996).

16 Benningfield v. City of Houston, 157 F.3d 369 (Sth Cir.

1998).

“(T]he goal of grand jury proceedings, of criminal

trials, and of civil trials is to resolve a dispute by gather-

ing the facts and arriving at the truth, a goal sufficiently

important to render testimony given in these contexts

speech of public concern.”!” An internal school commit-

tee meeting is not the same. Because schools are not

typically public forums, restrictions on speech can be

imposed so long as they are “reasonably related to legiti-

mate pedagogical concerns.” 18

If Respondents’ speech could be characterized as a

matter of public concern simply because they were

involved in the “truth seeking process,” then the form

requirement would be met in every case. Likewise, when

a committee meets to discuss any issue, the committee is

“seeking the truth.” If the only form requirement is

whether the speech is made in search of the truth, then

every case meets the test.

3. Context

The Fifth Circuit used the backdrop of public debate

and the Respondents’ “constant involvement in attempts

to improve education” to conclude that the context of

their speech involved a matter of public concern.!9 The

court incorrectly emphasized the public debate element

and misconstrued the evidence. Its characterization of the

7 Johnston v. Harris County Flood Control Dist., 869 F.2d

1565, 1568 (Sth Cir. 1989) (quotations and citations omitted).

‘8 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

'° See Harris, 168 F.3d at 222.

context of the speech as an attempt to improve education

was erroneous.

While a backdrop of public debate might indicate

that a citizen speaking on the debated topic would be

protected under the First Amendment, the existence of

such a debate has no relevance in determining whether a

school employee was speaking on a matter of public con-

cern in the workplace. Public debate necessarily occurs

outside of the workplace and should not affect whether

an employee, while at work, speaks on a matter of public

concern. The key issue is the context in which the

employee comments and whether those comments, in

that specific context, are of public concern.

Other circuits have held that the existence of public

debate on a subject has limited relevance in determining

whether speech involves a matter of public concern. One

Circuit has cautioned that “in assessing whether the

speech touches upon a matter of public concern, it is

important not to equate the public’s curiosity about a

matter with a matter having societal ramifications.”?°

Similarly, another circuit has excluded the degree of pub-

lic interest in an employee's speech from the analysis of

whether that speech involves a matter of public con-

cern.?!

The proper stage to consider evidence of public

debate is only in balancing the employer’s interest in

20 Egger v. Phillips, 710 F.2d 292, 316-17 (7th Cir. 1983),

overruled on other grounds, Feit v. Ward, 886 F.2d 848 (7th Cir.

1989).

21 See Ferrara v. Mills, 781 F.2d 1508 (11th Cir. 1986).

efficient operations against the employee’s right to free-

dom of speech.?2 This balancing test occurs only if the

employee’s speech involves a matter of public concern.”

Even if a backdrop of public debate is relevant, no

such backdrop was considered by the Fifth Circuit. All of

Respondents’ speech was made entirely within the school

environment. The only connection to any alleged public

interest stems from a newspaper article that commented

merely on the ratings of the school.74 There is no evidence

that the public was otherwise interested in or aware of

Respondents’ comments.

The Fifth Circuit majority concludes that Respondents

were “constantly involved in attempts to raise the level of

education at Victoria High School.”25 Teachers are neces-

sarily involved in (and responsible for) improving educa-

tion. That is their job. The context of their speech must be

more than something job-related to transform it into a

matter of public concern. If a teacher’s speech is a matter

of public concern because the speaker intends to “improve

education,” then everything becomes a public concern.

In Khuans, a special education teacher served as “liai-

son” between other teachers in her department and the

administration in communicating concerns about the

department. Her comments criticizing the department

head, although made in her capacity as “liaison,” were still

22 See id. at 1514.

23 Id.

24 Harris, 168 F.3d at 226 (Smith, J., dissenting).

25 Id. at 222.

10

complaints about how her supervisor performed her job,

not comments of public concern.?6 The same is true here.

Another clue in analyzing the true nature of speech is

the person to whom the statements are made.?” A

teacher’s memorandum criticizing her principal does not

rise to the level of a public call to change.?8 Similarly,

Respondents’ comments were directed to fellow teachers,

not the general public. They spoke up to air their per-

sonal gripes about the principal. The fact that they served

on a committee does not change the context.

If speech made in a school committee meeting is

public concern, then all speech, no matter how disrup-

tive, is protected. Allowing disgruntled teachers such

liberties will render it impossible for schools to function,

a concern this Court has specifically recognized.?9

II. The Fifth Circuit erred by requiring the district to

show actual disruption.

Once a court has found that a public employee’s

speech involves a matter of public concern, the court

must then consider whether the interests of the employee,

as a citizen, outweigh the interest of the state, as an

26 See Khuans, 123 F.3d at 1017-18.

27 Wales v. Board of Educ., 120 F.3d 82, 84 (7th Cir. 1997).

28 Id.

29 See Pickering v. Board of Ed. of Township High School Dist.

205, Will Cty., 391 U.S. 563, 568 (1968).

11

employer, in promoting the efficiency of the public ser-

vices it performs through its employees.* In doing so, the

court should consider the following factors:

(1) whether the statement would create prob-

lems in maintaining discipline by immediate

supervisors or harmony among co-workers; (2)

whether the employment relationship is one in

which personal loyalty and confidence are nec-

essary; (3) whether the speech impeded the

employee’s ability to perform her daily respon-

sibilities; (4) the time, place, and manner of the

speech; (5) the context in which the underlying

dispute arose; (6) whether the matter was one

on which debate was vital to informed decision-

making; and (7) whether the speaker should be

regarded as a member of the general public.?!

Although the Fifth Circuit accurately stated the Pickering

balancing test, it incorrectly applied it, requiring the dis-

trict to prove actual disruption.

School administrators have legitimate interests in

promoting efficiency and integrity, maintaining proper

discipline, and ensuring close working relationships

among employees.3? On Rehearing, the majority here con-

cluded that no balancing was required because one side

of the scale sat empty and opined that Petitioners

“did not effectively allege that [Respondents’] speech

30 See id. at 568.

31 Khuans, 123 F.3d at 1015.

32 See Connick, 461 U.S. at 151.

12

disrupted the school environment or affected their work

in any way.”*

No such showing is required. This Court has speci-

fically held that “substantial weight [must be given] to

government employers’ reasonable predictions of dis-

ruption, even when the speech involved is on a matter of

public concern.”34 The public employer should not be

required to wait until actual disruption occurs. Where

employee speech carries the potential to be disruptive,

the public employer must have the ability to move

quickly.35

Respondents’ conduct, their “Concerns” memoran-

dum, and their demands for removal of their principal

gave Dr. Brezina reason to believe that their actions

“would disrupt the learning environment, undermine the

authority of those responsible for the implementation of

the plan, and hinder the close working relationships that

were necessary in order for the plan to work.” The Fifth

Circuit is incorrect that “one side of the scale sat empty,”

and it was error for the court to decline to balance the

interests of the district and those of Respondents. To

deprive governmental employers of the protection of the

Pickering balancing test until they prove harm or “actual

disruption” ties the hands of educational institutions

until after the damage is done. It is for the districts, not

33 Harris v. Victoria Indep. Sch. Dist., No. 97-41015, 1999 U.S.

App. LEXIS 18305, at *2 (5th Cir. July 6, 1999).

34 Waters v. Churchill, 511 U.S. 661, 673 (1994) (emphasis

added).

35 Khuans, 123 F.3d at 1014.

36 Petition for Writ of Cert. App. at 44-45.

ee ea

13

the courts, to exercise such discretion. This Court has

recognized that in order to provide meaningful educa-

tion, administrators must have the “prerogative to

remove employees whose conduct hinders efficient oper-

ation and to do so with dispatch.”97

III. The Fifth Circuit erred by denying qualified

immunity to Petitioners.

Qualified immunity is designed to avoid distractions

from governmental duties, inhibition of discretionary

action, and deterrence of able people from public ser-

vice.** It shields conduct that does not violate clearly

established constitutional or statutory rights of which a

reasonable person would have been aware, and the right

must be sufficiently clear such that a reasonable official

would understand that his conduct violates that right.39

Respondents and the Fifth Circuit relied on decisions

which were decided after the district transferred Respon-

dents in January, 1996; decisions of which the district

could not have been aware.

The fact that both the trial judge and dissenting

appellate Justice Smith disagree with the majority obvi-

ates that the law was not clearly established.

“Equivocation by the judges who have exam-

ined the situation is the best proof of legal

uncertainty, and legal uncertainty confers

37 Connick, 461 U.S. at 151.

38 See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).

39 See Anderson v. Creighton, 483 U.S. 635 (1987).

14

immunity. Until the right in question has been

‘clearly established,’ courts do not demand that

public officials dig into their pockets .. . How

could anyone say that... unlawfulness . . . must

have been apparent to . . . a non-lawyer, when

with the benefit of hindsight and full reflection,

a federal district judge found that [the] . . . acts

were not unlawful? . . . Government officials

must be granted the ability to pass unmolested

through bogs of murky legal precedent. They

must not become prey to every hypothesis of

what the law might have come to forbid had it

eventually developed along certain lines. When

the law is clear, and an official’s duties delin-

eated, then he will not be able to rely on the

immunity defense. But we must not and do not

demand that every government official become

skilled in guessing the future path of the law.*

Although the Fifth Circuit recognizes that “Connick

and Rankin exemplify the difficulty of delineating any

bright-line constitutional rule that might furnish a test for

denying qualified immunity in such actions,”*! it would

require Petitioners to comply with “clearly established”

law when the four judges who have already reviewed this

case in lower courts cannot agree. The same questions

which Justice Breyer recently raised about the meaning of

40 Dahm v. Flynn, 60 F.3d 253, 259, 261 (7th Cir. 1994)

(Easterbrook, J., dissenting).

41 Noyola v. Texas Dep't of Human Resources, 846 F.2d 1021,

1025 (5th Cir. 1988); see also Gonzales v. Benavides, 774 F.2d 1295,

1303 (5th Cir. 1985), cert. denied, 475 U.S. 1140 (1986) (stating that

“individualized balancing seems preferable to a predictable but

inflexible categorical approach . . . because of the variety of

circumstances in which public employees speak”).

)

15

“policy or custom” in 42 U.S.C. § 1983 apply to the

qualified immunity issue here:

“The original principle has generated a body of

interpretive law that is so complex that the law

has become difficult to apply. Factual and legal

changes have divorced the law from the distinc-

tion’s apparent original purposes. And there

may be only a handful of individuals or groups

that have significantly relied upon perpetuation

of the original distinction. If all this is so, later

law has made the original distinction, not sim-

ply wrong, but obsolete and a potential source

of confusion.” 4

CONCLUSION

The Court is urged to review the Fifth Circuit opin-

ion, reverse it and confirm the trial court ruling that

Petitioners are entitled to immunity. To do otherwise

effectively sends a message to educators to put down

their lesson plans and pick up law books in an attempt to

predict the meaning of law upon which jurists on the trial

and Fifth Circuit courts cannot agree. Teachers’ criticisms

of their supervisor were not, and are not, clearly pro-

tected speech under the First Amendment.

42 Board of the County Commissioners of Bryan County, Okla. v.

Brown, 520 U.S. 397, 431 (1997).

16

For the reasons stated above, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

Davip J. LABREc

Counsel of Record

Katie ANDERSON

KATHRYN PETERSON

STRASBURGER & Price, L.L.P.

901 Main Street, Suite 4300

Dallas, Texas 75202

(214)651-4300 (phone)

(214)651-4330 (facsimile)

Counsel for Texas Association of

School Boards and National School

Boards Association