470 F.3d 250 (6th Cir. 2006), 04-6302, Scarbrough v. Morgan County Bd. of Educ.

Docket Nº:04-6302.
Citation:470 F.3d 250
Party Name:Paul SCARBROUGH, Plaintiff-Appellant, v. MORGAN COUNTY BOARD OF EDUCATION, Perry Spurling, Individually, Randy Harlan, Individually, Deborah Lively, Individually, and Conrad Strand, Individually, Defendants-Appellees.
Case Date:November 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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470 F.3d 250 (6th Cir. 2006)

Paul SCARBROUGH, Plaintiff-Appellant,


MORGAN COUNTY BOARD OF EDUCATION, Perry Spurling, Individually, Randy Harlan, Individually, Deborah Lively, Individually, and Conrad Strand, Individually, Defendants-Appellees.

No. 04-6302.

United States Court of Appeals, Sixth Circuit.

November 22, 2006

Argued: October 25, 2005

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 01-00198—Thomas W. Phillips, District Judge.

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Peter Alliman, WHITE, CARSON & ALLIMAN, Madisonville, Tennessee, for Appellant.

John C. Duffy, Knoxville, Tennessee, for Appellees.


Peter Alliman, WHITE, CARSON & ALLIMAN, Madisonville, Tennessee, Benjamin S. Pressnell, PRESSNELL & HARRELL, Tazewell, Tennessee, for Appellant.

John C. Duffy, Knoxville, Tennessee, for Appellees.

Before: SILER and CLAY, Circuit Judges; CARR, Chief District Judge.[*]


SILER, Circuit Judge.

Plaintiff Paul Scarbrough, the former elected school superintendent for Morgan County, Tennessee, was not appointed to the new position as the Director of Schools for the county system following the publication of a newspaper article which announced that he would be the featured speaker at a convention sponsored by a church with a predominantly homosexual congregation. He sued the Morgan County Board of Education and some of its individual members under several constitutional rights, including freedom of speech, freedom of association, free exercise of religion, and equal protection of the law. The district court dismissed the case, finding that inasmuch as Scarbrough had not gone to the convention or spoken in the church, he had no First Amendment right to protect. We AFFIRM in part and REVERSE and REMAND in part.


In 1996, Scarbrough was elected superintendent of Morgan County Schools. The position of elected school superintendent expired by law in Tennessee on August 31, 2000; the new law provided for appointment of a Director of Schools - who would perform the same duties as the superintendent - by the local board of education. The Morgan County Board of Education enlisted the aid of the Tennessee School Boards' Association (TSBA) to prepare for the search and interview process for a new school Director. Five candidates were selected by the TSBA for the Board's consideration. Scarbrough and David Freels, then-assistant superintendent of Morgan County Schools, were among these five candidates.

In March or April 2000, a friend approached Scarbrough and asked him to say a prayer at a convention breakfast being hosted by the Metropolitan Community Church of Knoxville (Metro). Scarbrough was unaware at the time that Metro had a predominantly gay and lesbian congregation. He initially agreed to the request, but later realized he had a scheduling conflict and notified his friend that he would be unable to attend. The friend then asked Scarbrough to speak at the convention, which Scarbrough agreed to consider. Ultimately he was unable to accept the invitation and so declined.

On May 13, 2000, the Knoxville News-Sentinel newspaper published an article

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announcing--incorrectly--that Scarbrough, the Morgan County Superintendent, would be a speaker at the Metro-sponsored convention. The article further stated that Metro was a predominantly gay and lesbian Christian church. However, Scarbrough had declined the speaking engagement after Metro supplied the information to the News-Sentinel. Thereafter, Scarbrough provided written statements to two local newspapers explaining the inaccuracies in the News-Sentinel article. The published statements maintained that Scarbrough had declined the speaking engagement and further noted that he did not endorse, uphold, or understand homosexuality, but that he would not refuse to associate with gay people or refuse the opportunity to share with them his beliefs.

After the News-Sentinel article ran, Board members Perry Spurling, Conrad Strand, and Debra Lively received complaints from Morgan County constituents critical of Scarbrough's agreement to speak at the Metro convention. Some constituents expressed the concern that Scarbrough should not be appointed Director of Schools. Spurling, Strand, Lively, and Randy Harlan became concerned that Scarbrough was putting the school's "stamp of approval" on homosexuality as an acceptable alternative lifestyle. Additionally, although Scarbrough did not know of or consent to the News-Sentinel article prior to publication, the Board members believed that the article called Scarbrough's judgment into question, undermined public confidence in him, and impaired his ability to function effectively as chief administrator of the school system.

The Board interviewed the five candidates between May 15 and May 30. It subsequently narrowed the field from five candidates to three, of which David Freels was the third choice. Scarbrough was the Board's fourth choice out of five candidates. After the first and second choices withdrew from consideration, the Board selected Freels as the new Director of Schools, effective September 1, 2000. Consequently, Scarbrough submitted an application for retirement.

Scarbrough alleged that after the publication of the News-Sentinel article, the attitudes of defendant Board members changed and another, less-qualified candidate (Freels) was selected over him for Director of Schools. Scarbrough brought this action pursuant to 42 U.S.C. § 1983 and Article I §§ 3, 4, 8 and 19 of the Tennessee Constitution for violations of his rights to freedom of speech, association, and exercise of religion, and to equal protection of the laws. The district court granted summary judgment in favor of defendants on all claims.

Standard of Review

We review a district court's grant of summary judgment fife novo. Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir. 2004). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" as to an essential element of the non-moving party's case. Fed.R.Civ.P. 56(c). Where there are no disputed facts, we determine, de novo, whether the district court properly applied the substantive law. See Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1345 (6th Cir. 1992).


Scarbrough claims that the Board violated his rights to freedom of speech, association, and religion as guaranteed by the First Amendment, and deprived him of equal protection of the law as guaranteed by the Fourteenth Amendment. Specifically, he claims that when the Board denied

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him the position of Director of Schools, it was retaliating against him for exercising his First Amendment freedoms and treating him differently than similarly situated applicants based only upon their animus toward homosexuals.

A. First Amendment Retaliation

Scarbrough first complains that he was deprived of a government employment opportunity in retaliation for his exercise of First Amendment protected activities. Specifically, he alleges that the Board selected Freels over him for Director of Schools because of his tentative agreement to speak at the Metro convention.

In order for an employee to establish a claim of First Amendment retaliation, the employee must demonstrate that: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two - - that is, the adverse action was motivated at least in part by his protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Thus, in the instant case, the dispositive question is whether Scarbrough's protected conduct caused the Board not to choose him for the position.

1. Freedom of Speech

The First Amendment prohibits retaliation by a public employer against an employee on the basis of certain instances of protected speech by the employee. See Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). However, "[w]hile public employees may not be required to sacrifice their First Amendment free speech rights in order to obtain or continue their employment, a state is afforded greater leeway to control speech that threatens to undermine the state's ability to perform its legitimate functions." Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (internal citations omitted). Thus, courts apply a two-part inquiry for discerning when the discharge of a public employee violates the First Amendment. See Rose v. Stephens, 291 F.3d 917, 920 (6th Cir. 2002). "The threshold question is whether the employee's 'speech may be fairly characterized as constituting speech on a matter of public concern.' " Id. (quoting Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1186 (6th Cir. 1995)). "If the speech relates to a matter of public concern, then the court employs the balancing test outlined in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), to determine if the employee's free speech interests outweigh the efficiency interests of the government as employer." Id. this sort of balancing test recognizes the tension that sometimes arises in guaranteeing First Amendment protection to "citizens" who are linked to the government.

In Pickering, the Court held impermissible under the First Amendment the dismissal of a high school teacher for openly criticizing the Board of Education's allocation of school funds between athletics and education and its...

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