150 F.3d 887 (8th Cir. 1998), 96-4239, Porter v. Dawson Educational Service Co-op.

Docket Nº:96-4239, 97-1077.
Citation:150 F.3d 887
Party Name:M. Sue PORTER, Appellant, v. DAWSON EDUCATIONAL SERVICE COOPERATIVE; James Ford, Dr., Director of the Cooperative, Appellees. Don Henson, President of the Cooperative Board, Appellee. Michael McNabb, Board Member of the Dawson Educational Service Cooperative, in his individual and official capacities, George Foshee, Board Member of the Dawson Educa
Case Date:July 27, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 887

150 F.3d 887 (8th Cir. 1998)

M. Sue PORTER, Appellant,

v.

DAWSON EDUCATIONAL SERVICE COOPERATIVE; James Ford, Dr.,

Director of the Cooperative, Appellees.

Don Henson, President of the Cooperative Board, Appellee.

Michael McNabb, Board Member of the Dawson Educational

Service Cooperative, in his individual and official

capacities, George Foshee, Board Member of the Dawson

Educational Service Cooperative, in his individual and

official capacities, Joe Clark, Board Member of the Dawson

Educational Service Cooperative, in his individual and

official capacities, Jerry Johnson, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Randy King, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Irvin Bass, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Roy Rowe, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Steven Floyd, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Diana Julian, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Frank Chenault, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Danny Henley, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, J.L. Ford, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Jerry Moore, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Jim Dalton, Board Member of the

Dawson Educational Service Cooperative, in his individual

and official capacities, Appellees,

David Craig, Board Member of the Dawson Educational Service

Cooperative, in his individual and official

capacities, Appellee.

Nos. 96-4239, 97-1077.

United States Court of Appeals, Eighth Circuit

July 27, 1998

Submitted Nov. 20, 1997.

Rehearing Denied Aug. 27, 1998.

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Warner Hodges III, Germantown, Tennessee, argued, for appellant/cross-appellee.

Danny Franklin Bufford, Little Rock, Arkansas, argued, for appellee/cross-appellant.

Before RICHARD S. ARNOLD, 1 Chief Judge, McMILLIAN, Circuit Judge, and STEVENS, 2 District Judge.

McMILLIAN, Circuit Judge.

M. Sue Porter appeals from a final judgment entered in the United States District Court 3 for the Eastern District of Arkansas, setting aside an amended judgment on a jury verdict in her favor and entering judgment in favor of appellees David Craig and Don Henson. Porter v. Dawson Educational Service Cooperative, No. LR-C-96-101 (E.D.Ark. Nov. 15, 1996). For reversal, appellant argues the district court erred in holding that her speech was not protected by the First Amendment and that appellees were entitled to qualified immunity. She also argues the district court erred in setting aside the jury verdict, refusing to grant her equitable remedies, denying her attorney's fees and costs, and vacating the award of punitive damages. Appellees filed a cross-appeal in which they argue the district court erred in denying their motion for directed verdict. For the reasons discussed below, we hold appellant's speech was not protected by the First Amendment and therefore do not reach appellant's other arguments. Accordingly, we affirm the judgment of the district court and dismiss the cross-appeal.

JURISDICTION

The district court has subject matter jurisdiction of this 42 U.S.C. § 1983 civil rights action under 28 U.S.C. § 1343. The notice of appeal was timely filed pursuant to Fed. R.App. P. 4(a)(1), and this court has appellate jurisdiction under 28 U.S.C. § 1291.

FACTUAL BACKGROUND

Many of the facts are not disputed. Federal law requires that states provide a "free appropriate public education" for all children with disabilities. Education for All Handicapped Children Act, as amended, 20 U.S.C. § 1401 et seq. (Pub.L. No. 94-142, 89 Stat. 774) (hereinafter "the Act"). The Arkansas Department of Education (ADE) is the state agency responsible for implementing the Act and receives funds from the federal government. The ADE in turn requires local public school districts, either individually or jointly, to provide educational services to handicapped children.

Dawson Educational Service Cooperative (Dawson) is an "intermediate service unit" established pursuant to state law to provide educational services to handicapped children in several public school districts. The member school districts delegated their responsibilities

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under the Act to Dawson. Appellant was employed by Dawson as the Early Childhood Coordinator in 1987 and was in charge of providing special education programs to pre-school students (3- to 5-year-olds) who were entitled to services under applicable federal guidelines.

One of the requirements for receiving federal funds is that the states must send reports to the United States Department of Education of the number (referred to as the "child count") of special education students between the ages of 3 and 21 receiving services and certify that the number is accurate and unduplicated. 34 C.F.R. § 300.50-.751. If the child count requirements are not met, states can lose federal funding for special education services. ADE policy required that the child count list the names of the students receiving special education services so that the names can be compared with lists of students in other federally and state-funded education programs to catch duplications.

Several of the school districts that were served by Dawson also wanted a copy of the child count reports, including the students' names, because they are legally responsible for providing the required education services to infants as well as pre-school students, kindergarten students and older students.

In November 1991 ADE instructed all Early Childhood Coordinators and local education agencies to include in the child count reports the name, date of birth, and disability category for all students in pre-school programs. 4 Appellant objected to the inclusion of the students' names because she believed that federal regulations required that personal identification information be kept confidential, citing 34 C.F.R. § 99.30. Dr. James Ford, the director of Dawson, sent a letter to the parents of the students in the Dawson pre-school program advising them that, if they objected to the release of their child's name to the participating school district or to the ADE, they would have to withdraw their child from the program. The ADE advised Ford that this letter could deny handicapped children the "free appropriate public education" required by federal law because parents would withdraw their children from the pre-school program.

A parent filed a lawsuit in federal district court challenging the release of the pre-school students' names in the child count...

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