Kinsey v. Salado Independent School Dist.

• Decision Date: 03 January 1992
• Docket Number: No. 89-1717,89-1717
• Citation: 950 F.2d 988
• Parties: , 71 Ed. Law Rep. 659 Dr. Nolan L. KINSEY, Plaintiff-Appellant, v. SALADO INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 988

950 F.2d 988

60 USLW 2476, 71 Ed. Law Rep. 659

Dr. Nolan L. KINSEY, Plaintiff-Appellant, v. SALADO INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 89-1717.

United States Court of Appeals, Fifth Circuit.

Jan. 3, 1992.

William C. Bednar, Jr., Eskew, Muir & Bednar, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GOLDBERG, POLITZ, KING, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. ^*

BARKSDALE, Circuit Judge.

We took this case en banc to consider the protection vel non afforded by the First Amendment (as incorporated by the Fourteenth) to a public school superintendent, Dr. Nolan L. Kinsey, who opposed through speech and affiliation the winning slate in a school board election and was relieved of his duties (but with full compensation) by the new Board. Kinsey sued the Salado Independent School District and others (the School District), including asserting claims for violations of due process under the Fourteenth Amendment and freedom of speech (including of association) under the First. Summary judgment was granted against the former; judgment notwithstanding the verdict, against the latter. A divided panel reversed on the First Amendment issue. 916 F.2d 273. ¹ We reach a different conclusion and AFFIRM.

I.

Salado, Texas, is a small community. In 1988, there was considerable concern about the operation of its schools. Kinsey had served as superintendent since 1981, pursuant to a contract reviewed annually and extended periodically. In May 1988, elections were held for three positions on the seven member school board. Two groups sought board control, and the concern primarily centered on Kinsey. Controversy surrounding him had begun in 1984. The factors fueling it in 1988 included a new grading system, teacher certification (including teaching outside qualified area), and the division of authority between the Board and superintendent.

In January 1988, a few months before the elections, Kinsey's contract had been extended for a two-year term (through June 1990), but only by a vote of four to three. Well in advance of the elections, Kinsey had become aligned with the four-member Board majority, including its president, Don Berry. Berry and two others from the majority were up for re-election and ran as a slate (Berry's). One of the members of the Board minority--Glen Hagler, who had shortly before voted against renewing Kinsey's contract--and two others (Hagler's) ran against Berry's. As noted, one issue concerned the Board's role: Kinsey's view was that the Board established policy, but he was to run the schools on a daily basis.

Berry's supported Kinsey's superintendency; Hagler's opposed it. Likewise, Kinsey openly expressed support for Berry's and opposition to Hagler's. Kinsey supported Berry's, because Berry shared a similar view of the Board's role. Kinsey was concerned that Hagler's would become involved in the daily operation of the schools. In addition, he was concerned that if Hagler's were elected, his job would be in jeopardy; this was one of the reasons why he was active in the campaign. Kinsey did not make any financial contributions, serve on any committees, or make any speeches. He did, however, have numerous conversations with Salado citizens in which he voiced support for Berry's and concerns about Hagler's. ² In addition, as part of his political support for the Berry slate, he had a letter published in the local newspaper, in which he complimented Berry on his performance on the Board.

Essentially, a vote for Berry's was viewed as a vote for Kinsey; a vote for Hagler's, as a vote against him. Following one of the largest ever voter turnouts for such elections, Hagler's won by a wide margin and formed a new majority with Board member Joe Barrentine, who had not been up for re-election. As a member of the prior Board, he, like Hagler, had voted in January 1988 against renewing Kinsey's contract. Barrentine and Hagler became the new Board president and secretary, respectively.

Simply put, immediately after the election, the situation went from bad to worse. There was a strained relationship between Kinsey and the new Board, to put it mildly. ³ It began meeting frequently in executive session about Kinsey. Lawyers were brought in on both sides. In late July 1988, after an unsuccessful attempt to buy-out Kinsey's contract, the Board agreed to set aside for six months the issue of his contract--until the usual January evaluation. For the interim, the Board issued directives regarding the manner in which he was to perform. There was disagreement regarding Kinsey's compliance with them. The Board majority felt that he rejected the directives; the minority, that he made reasonable efforts to comply.

Following issuance of the directives, the Board met with the Texas Education Agency to discuss its July 1988 evaluation of the district. That evaluation had lowered the accreditation rating, including because of the poor relationship between the Board and Kinsey (governance problem) and issues related to teacher certification (including misassigned teachers). Following that meeting, during which the Agency Administrator instructed the Board to solve the "governance problem", the Board scheduled a special session to discuss the termination or suspension of Kinsey's contract. In September 1988, the Board, by a vote of four to three, relieved him of his duties, but with full pay and benefits.

Kinsey promptly sued, including pursuant to 42 U.S.C. § 1983. ⁴ The complaint leaves no doubt about Kinsey's open opposition to, including association against, the new majority. It alleged that not later than April 1988, the Board had been "divided into two political factions", with Kinsey associated with, and supported by, the majority (including Berry) and with the minority "increasingly critical of [Kinsey], as were their supporters in the community"; that prior to the elections, Kinsey had been "openly against the political platform and election of" the two new members and that this had been "well known to all of [the] individual defendants and to their community supporters"; and that immediately after the elections, the new majority "set out to terminate [him] ... in retaliation for his association with their political opponents." Kinsey charged, inter alia: that his contract was recognized by Texas law as a property interest and, contrary to the Fourteenth Amendment, had been terminated without procedural due process; and that his First Amendment rights had been violated, because he had been terminated as a result of his "active support of and association with the political opposition" to the majority, who had retaliated against him "because of his political position, and because of his speaking out for candidates of his choice". Kinsey also raised numerous pendent state law claims, including that his termination violated state law.

The district court granted summary judgment against the claims as to the Board members in their individual capacities and against the federal claims, except as to the First Amendment. It also granted the School District's unopposed motion to dismiss the pendent claims. ⁵ At trial on the First Amendment claim, and following Kinsey's case-in-chief, the School District moved for a directed verdict, including because Kinsey's "interest as a citizen in the exercise of whatever speech or political activity he engaged in [was] outweighed [by] the ... governmental interests in the effective and efficient fulfillment of [the School District's] responsibilities to the public." (Emphasis added.) The court ruled that the motion was not granted at that time, indicating that it would reconsider it after the verdict. ⁶ At the close of the evidence, the School District so moved; and again, under Fed.R.Civ.P. 50(b), the district court took the motion under advisement pending the verdict. The jury returned a verdict for Kinsey, awarding him $250,000 in damages. It found by special interrogatories that he was terminated because of his "exercise of his First Amendment rights in relation to the" elections.

The district court granted the School District's Rule 50(b) motion for judgment notwithstanding the verdict, ruling, in part, that whether Kinsey's conduct was protected by the First Amendment was a question of law, which it was required to resolve based on the evidence. Upon that assessment, it held in part:

Kinsey, as superintendent, was in a close confidential relationship to the board.... If the relationship between the two [is] antagonistic, the ... School District's operation may be adversely affected. The record is clear that Kinsey's relationship with the Board worsened after the ... election....

The Court finds that such disruptions undermined the effectiveness of the School Board. Kinsey's right to speech or political opposition to a majority of the officials elected by the community to govern him is outweighed by the board's legitimate interest in having a superintendent with loyalty to the new board's policies and directives.

(Emphasis added.) The district court denied the School District's alternative motion for a new trial, ruling that if it was reversed, the verdict should stand. See Fed.R.Civ.P. 50(c)(1).

II.

Our review is limited to the summary judgment on the Fourteenth Amendment and the judgment notwithstanding the verdict on the First.

A.

For the latter, we address legal issues at the threshold; if we rule against Kinsey, we stop. In so ruling, we do not consider whether the termination comported with state law. Instead, we focus on the reach of the First Amendment. Kinsey's activities included not only speech, but also political association or affiliation (a form of speech). Free and open speech and political affiliation are part of the mix that molds and...