Ward v. Hickey

• Decision Date: 05 April 1993
• Docket Number: 92-2240,92-2241,92-2271,Nos. 92-1883,s. 92-1883
• Parties: 84 Ed. Law Rep. 46 Toby Klang WARD, Plaintiff, Appellant, v. Carol HICKEY, et al., Defendants, Appellees. Toby Klang WARD, Plaintiff, Appellee, v. Carol A. HICKEY, et al., Defendants, Appellees. The School Committee of the Town of Belmont, Defendant, Appellant. Toby Klang WARD, Plaintiff, Appellee, v. Carol A. HICKEY, et al., Defendants, Appellants. Toby Klang WARD, Plaintiff, Appellant, v. Carol HICKEY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 448

996 F.2d 448

84 Ed. Law Rep. 46

Toby Klang WARD, Plaintiff, Appellant, v. Carol HICKEY, et al., Defendants, Appellees.

Toby Klang WARD, Plaintiff, Appellee, v. Carol A. HICKEY, et al., Defendants, Appellees.

The School Committee of the Town of Belmont, Defendant, Appellant.

Toby Klang WARD, Plaintiff, Appellee, v. Carol A. HICKEY, et al., Defendants, Appellants.

Toby Klang WARD, Plaintiff, Appellant, v. Carol HICKEY, et al., Defendants, Appellees.

Nos. 92-1883, 92-2240, 92-2241, 92-2271.

United States Court of Appeals First Circuit.

Heard April 5, 1993.

Decided June 15, 1993.

Americo A. Salini, Jr., with whom Massachusetts Teachers Ass'n, Boston, MA, was on brief for plaintiff, appellant Toby Klang Ward.

Andrew J. McElaney, Jr., with whom John M. Griffin, Daniel R. Harris, and Nutter, McClennen & Fish, Boston, MA, were on brief for defendants, appellees Carol A. Hickey and Mary N. Tinkham.

David C. Hawkins, with whom Robert J. Morrissey, and Morrissey & Hawkins, Boston, MA, were on brief for the School Committee of the Town of Belmont.

Before TORRUELLA and STAHL, Circuit Judges, and BURNS, ^* Senior District Judge.

TORRUELLA, Circuit Judge.

Toby Klang Ward, a nontenured biology teacher in the Belmont, Massachusetts public schools, sued the School Committee of the Town of Belmont and three members of the Committee as individuals for violation of her First Amendment rights by the Committee's decision not to reappoint her on the basis of a classroom discussion. Defendants Mary Tinkham, Carol Hickey, and the late Margaret Gibson cast the deciding votes against Ward's reappointment. Based on a jury's answers to various special questions, the district court entered judgment in favor of defendants, but denied defendants' subsequent request for attorneys' fees. We affirm the district court's judgment, albeit on different grounds. In addition, we affirm part of the attorneys' fees judgment and remand the rest for a determination of whether any of Ward's litigation was frivolous.

BACKGROUND

The dispute arose out of a discussion in Ward's ninth grade biology class concerning abortion of Down's Syndrome fetuses. ¹ Defendant Tinkham learned of this discussion from a parent of a student in that class.

In June 1982, the School Committee voted on Ward's reappointment for the 1982-83 school year. A favorable vote would have granted Ward tenure. By a deadlocked vote of 3-3, however, the School Committee decided to deny reappointment.

As a result of this decision, Ward sued, alleging: (1) defendants retaliated against her for discussing abortion by voting against her reappointment; (2) defendants conspired to deny her constitutional rights by deciding not to rehire her; (3) defendants acted arbitrarily and capriciously in violation of the Subsequently, Ward filed a second amended complaint alleging the violation suggested by the magistrate. The court denied defendants' motion to dismiss with respect to that claim, but granted it to the extent that the complaint alleged a violation of a First Amendment right to discuss controversial issues in a high school class. Ward voluntarily dismissed her claim against Gibson after Gibson's death on January 3, 1991.

                Fourteenth Amendment;  and (4) defendants wrongfully terminated her in violation of the School Committee's internal policies.   On November 16, 1989, a magistrate recommended that the district court dismiss Ward's complaint for failure to state a claim, but grant Ward leave to amend her complaint to include a First Amendment "failure-to-forewarn" claim.   According to the magistrate, Ward had a constitutional right to notice that her discussion was prohibited before the School Board could retaliate against her for that discussion.   On August 31, 1990, the district court adopted the magistrate's recommendation, dismissed the complaint, and granted the requested leave to amend.  See Ward v. Hickey, 781 F.Supp. 63 (D.Mass.1990)
                

Ultimately, the case went to a jury in two phases. At the end of Phase I, the court asked the jury for verdicts on six special questions. ² In response to the first five questions, the jury concluded that Tinkham voted against reappointment because of the content of Ward's classroom statements, and that Hickey and Gibson were not so motivated. Inexplicably, in response to question six, the jury found that all three committee members who voted against reappointment did so based on what they believed Ward said in her biology classroom without first investigating the matter. ³ The jury also found that Tinkham and Hickey acted recklessly in this decision.

Having narrowed the disputed issues to the vote cast by Tinkham, the district court asked the jury three additional questions in Phase II. In response to these questions, the jury concluded that Tinkham's views regarding abortion of Down's Syndrome fetuses did not conflict with the views that Tinkham believed Ward espoused.

Armed with the jury verdicts, the district court entered judgment for defendants. Specifically, the court found for Hickey because the disputed discussion did not motivate her vote. The court then relied on Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), to conclude that Tinkham's disagreement with Ward's views was an essential element of Ward's First Amendment claim. ⁴ Since the jury found no disagreement, the court found for Tinkham. As its members did not act improperly, the court ultimately found for the School Committee.

The court also offered alternative grounds for its judgment. According to the court, Tinkham was entitled to qualified immunity, and Ward failed to establish the School Committee's liability under 42 U.S.C. § 1983 (1981).

After the court announced its decision, Tinkham and the School Committee filed conditional motions seeking relief in the event that this court vacates the district court's judgment. The motions sought to set aside the jury's special verdicts which found that Tinkham's vote was motivated by the controversial classroom discussion, and the verdict which concluded that the individual defendants voted without investigation into what occurred in Ward's classroom. The defendants contended that the verdicts contradicted the weight of the evidence. In the alternative, they requested a new trial. The court denied the motion to set aside the jury's special verdicts, but granted a conditional new trial due to the clear weight of the After the court entered its final judgment, defendants filed a motion for attorneys' fees pursuant to 42 U.S.C. § 1988. The district court denied the motion but suggested that if we reverse the fee ruling, we should only grant fees for the portion of the litigation that occurred after January 3, 1992. The court also indicated that the fees defendants requested for that portion were reasonable. Defendants appeal the denial of fees, and Ward cross-appeals, arguing for a reduction of the court's fee award in its alternative judgment.

                evidence. 5  Ward appeals from the final judgment and order, except for the portion of the judgment relating to Hickey
                

DISCUSSION

I. FIRST AMENDMENT

In general, as Ward was a nontenured teacher the School Committee could have refused to rehire her without any reason at all. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977). However, a school committee violates the First Amendment, applicable to the states through the Fourteenth Amendment, if it denies rehiring in retaliation for a nontenured teacher's exercise of constitutionally protected speech. Id. at 283-84, 97 S.Ct. at 574-75; Perry v. Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972).

To establish a First Amendment violation, Ward had to show that (1) her discussion of abortion of Down's Syndrome fetuses was constitutionally protected; and (2) the discussion was a motivating factor in the decision not to rehire her. Mount Healthy City Sch. Dist. of Educ., 429 U.S. at 287, 97 S.Ct. at 576; see also Miles v. Denver Public Schs., 944 F.2d 773, 775 (10th Cir.1991). If Ward made that showing, defendants had to establish by a preponderance of the evidence that they would not have rehired Ward even if she had not made the controversial statements. Id.

We begin with the proposition that teachers retain their First Amendment right to free speech in school. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). On the other hand, it is well-settled that public schools may limit classroom speech to promote educational goals. See id. at 507, 89 S.Ct. at 736. Courts have long recognized the need for public school officials to assure that their students "learn whatever lessons [an] activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271, 108 S.Ct. 562, 570, 98 L.Ed.2d 592 (1988).

In light of these competing principles, we find that a school committee may regulate a teacher's classroom speech if: (1) the regulation is reasonably related to a legitimate pedagogical concern, id. at 273, 108 S.Ct. at 571; and (2) the school provided the teacher with notice of what conduct was prohibited, see Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967).

Through varying tests courts have afforded schools great deference in regulating classroom speech. Krizek v. Board of Educ., 713 F.Supp. 1131, 1138 (N.D.Ill.1989). See, e.g., Zykan v. Warsaw Community Sch. Corp., 631 F.2d 1300, 1306 (7th Cir.1980) (abuse of discretion standard for analyzing school board's decision to remove books from curriculum); Cary v. Board of Educ. Arapahoe Sch. Dist., 598 F.2d 535, 543 (10th Cir.1979) (local...