Bowman v. Pulaski County Special School Dist., s. 82-2119

• Citation: 723 F.2d 640
• Decision Date: 29 December 1983
• Docket Number: 82-2120 and 83-1437,Nos. 82-2119,s. 82-2119
• Parties: 15 Ed. Law Rep. 136 Bob BOWMAN and James Mackey, Pulaski Association of Classroom Teachers, Mary Ann DeLaney; Doris Golden; and Billie L. and Geneva Martin, as parents and next friends of Terry Martin, Appellees/Cross-Appellants, v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al., Appellants/Cross-Appellees. Bob BOWMAN and James Mackey, Pulaski Association of Classroom Teachers, Mary Ann DeLaney; Doris Golden; and Billie L. and Geneva Martin, as parents and next friends of Terry Martin, Appellees, v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 640

723 F.2d 640

15 Ed. Law Rep. 136

Bob BOWMAN and James Mackey, Pulaski Association of

Classroom Teachers, Mary Ann DeLaney; Doris Golden; and

Billie L. and Geneva Martin, as parents and next friends of

Terry Martin, Appellees/Cross-Appellants, v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al.,

Appellants/Cross-Appellees.

Bob BOWMAN and James Mackey, Pulaski Association of

Classroom Teachers, Mary Ann DeLaney; Doris

Golden; and Billie L. and Geneva

Martin, as parents and next

friends of Terry

Martin, Appellees, v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al., Appellants.

Nos. 82-2119, 82-2120 and 83-1437.

United States Court of Appeals,

Eighth Circuit.

Submitted June 17, 1983.

Decided Dec. 29, 1983.

Philip E. Kaplan, Karen L. Arndt, Kaplan, Hollingsworth & Brewer, P.A., Richard Roachell, Cearley, Mitchell & Roachell, Little Rock, Ark., for Bowman et al.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

ROSS, Circuit Judge.

These consolidated appeals arise out of an action brought under 42 U.S.C. Sec. 1983, 28 U.S.C. Secs. 2201, 2202 and 1343, and an action to recover attorney fees pursuant to 42 U.S.C. Sec. 1988. This court's jurisdiction is based on 28 U.S.C. Sec. 1291.

I. Facts

This case addresses the question of the extent of protection afforded to instructors in the public school system by the first amendment to the United States Constitution. The events giving rise to this appeal are as follows:

Bob Bowman and James Mackey, appellants and cross-appellees (hereinafter appellants), were teachers and coaches at Jacksonville Junior High School Northside (hereafter JJHSN) in Jacksonville, Arkansas. Bowman taught science at JJHSN and was an assistant football coach. Mackey also taught science and was an assistant coach in both football and basketball. The appellants are certified, tenured non-probationary teachers in the state of Arkansas and each has an excellent record as an educator.

The appellants were under the direction and control of head coach Jimmy Walker when performing their duties as assistant coaches. On April 29, 1982, coach Walker disciplined five students in his office. The punishment, described at trial as "licks," consisted of striking the student on the buttocks and thighs with a paddle. The single lick given to each student by coach Walker was excessive as it raised welts or bruises on the back of the student's thighs.

Pulaski County Special School District permits corporal punishment of students but regulates the practice. One of these regulations requires a second faculty member to witness the actual punishment and to listen as the student is informed of the reason for the disciplinary action. The witness must then fill out and sign a form reporting the incident.

On April 29, 1982, the appellants were sitting in coach Walker's office at the time the students were brought in to be disciplined. Mackey left the room about the time the first lick was struck. Bowman remained in the room throughout the entire course of the punishment. He testified that though the room was small he was unable to actually see the students as a stereo on a desk screened his view. Coach Walker did not request either of the appellants to act as a witness at this time though he did explain to the students the reason for the punishment.

Several of the students who were paddled approached Bowman shortly after the incident and displayed their bruises to him. Bowman had the students put ice on the bruises and called coach Walker's attention to the effects of the paddling. Mackey was also approached by several of the students and he helped them gain access to a telephone.

Upset over the incident, the parents of the students made coach Walker's method of discipline, both on this and past occasions, a matter of public debate. The appellants discussed the punishment with the parents, made public statements about the unwarranted severity of the licks, and expressed their individual opinion on the question of how coach Walker should be disciplined. The incident drew a considerable amount of press coverage, caused some turmoil in the community, and is blamed for dividing a previously harmonious faculty and student body. In addition to the above, coach Walker requested Bowman to complete and sign a witness form. This request, made after the undue effects of the punishment were known, was refused. Bowman's refusal to sign the form increased the tension existing among the faculty.

The school board and administration then took action in an attempt to resolve the problem. Coach Walker was briefly suspended and his authority to administer corporal punishment was curtailed. He also issued a public apology. The appellants on the other hand were involuntarily transferred to Scott Middle School, a recently reopened facility. The appellants after exhausting the available administrative remedies filed suit in the United States District Court ¹ arguing that the involuntary transfer violated the provisions of the first amendment protecting freedom of speech and association.

The trial court upon its own motion made the hearing for a preliminary injunction the final hearing on the merits. The court found that the transfers in question were intended by the school board and the administration of JJHSN to be a disciplinary action, designed to punish the appellants for speaking out in public. The court then rescinded the involuntary transfers, ordered the parties to make a good faith attempt to resolve the dispute among the coaching staff, and stated that if such efforts were unavailing a transfer of the appellants to a better or comparable school would be permitted. The court also noted the possibility that coach Walker could be transferred if the parties could not enter into a beneficial working relationship.

At a meeting of the coaches, the appellants were asked if they could work with coach Walker. The appellants both expressed the belief that a positive working relationship could be reestablished. Coach Walker, however, remained adamant in his refusal to work with either party. In the belief that there was no point in following a less drastic course of action, the appellants were again transferred. There is no evidence indicating that the school board ever seriously considered the possibility of a transfer for coach Walker.

Mackey was transferred to J.A. Fair High School where he was given the position of assistant coach for both football and basketball and was asked to teach social studies rather than his normal courses in science. The total round trip mileage to and from work for Mackey increased from less than one mile to about 68 miles. Bowman was transferred to McClellan High School where he assumed the position of head coach for tenth grade football. Bowman was required to instruct students in American history rather than science, his normal subject. Bowman now drives a total of approximately 100 miles to and from work, up from his earlier "minimal" amount of travel time.

Though the appellants' salaries were increased slightly as a result of the transfers, they remained dissatisfied with the new positions and petitioned the district court for further relief. In addition to the longer commute to work and the change in their teaching duties, the appellants alleged several other major difficulties they encountered with the new assignments. Bowman, in his affidavit in support of the motion for further relief, stated that he did not have sufficient experience to coach high school level football under the system used at McClellan, that he was given insufficient time to prepare himself for the new position, and that he was denied the use of materials essential to the success of any new instructor. He could not for example procure a teacher's edition of the student textbook in his new subject area. This was true even though the school year was already four days old when he entered his class room for the first time.

James Mackey stated that his new coaching position required him to travel out of town to follow the team's schedule of away games and that his weekends must be largely devoted to preparation for those games. The transfer has forced the closing of a drug dependency and youth program he opened and ran at JJHSN. In addition, the change in his teaching assignment has made pointless his personal investment of over $2,500 in science equipment, which in earlier years was left in his classroom and made available to students.

The district court denied the motion for further relief and this appeal followed. The appellants ask to be reinstated to their original positions at JJHSN. The appellees cross-appeal from the district court's determination that the appellants' constitutional rights were violated. We affirm in part and reverse in part.

II. First Amendment Analysis

A court deciding a claim by a public employee that his or her first amendment rights have been violated must engage in a three step analysis. The court must determine (1) whether the plaintiff has carried the burden of demonstrating that he engaged in protected activity, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); (2) whether the protected activity was a substantial or motivating factor in the actions taken against the plaintiff, Mt. Healthy City School Dist. Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); and (3) whether the defendant has defeated the plaintiff's claim by demonstrating that the same action would have been taken in the absence of the protected activity Givhan v. Western Lines Consolidated School Dist., 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Monsanto v. Quinn, 674 F.2d 990, 993 (3d Cir.1982).

In this case only the first level of analysis is in issue. The appellee argues that the trial court improperly applied the Pickering test in finding the appellants' speech to be a protected...