Kirkland v. Northside Independent School Dist.

• Decision Date: 22 December 1989
• Docket Number: No. 88-5640,88-5640
• Citation: 890 F.2d 794
• Parties: , 57 Ed. Law Rep. 396 Timothy KIRKLAND, Plaintiff-Appellee, v. NORTHSIDE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 794

890 F.2d 794

58 USLW 2412, 57 Ed. Law Rep. 396

Timothy KIRKLAND, Plaintiff-Appellee, v. NORTHSIDE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.

No. 88-5640.

United States Court of Appeals, Fifth Circuit.

Dec. 22, 1989.

Emerson Banack, Jr., William T. Armstrong, Nan P. Seidenfeld, Foster, Lewis, Langley, Gardner & Banack, San Antonio, Tex., for defendant-appellant.

James A. Kosub, Kosub & Gaul, San Antonio, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, GEE and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This civil rights action arose as a consequence of the non-renewal of a probationary teacher's employment contract. The nontenured public school teacher sought relief under 42 U.S.C. Sec. 1983 for alleged violations of his constitutional rights. We are asked to decide whether the first amendment empowers public school instructors to teach from their own individual reading lists, in substitution for those supplied by schools as part of their official curricula, without first procuring administrative approval.

We conclude that the teacher's use of the supplemental list does not fall within the rubric of constitutionally protected speech. The case presents a matter of private, not public concern. It is misleading to suggest, as the teacher does here, that this dispute touches upon the public's concern over censorship of books and one's ideological views. Since school officials were never afforded an opportunity to pass judgment upon the reading list, such censorship, or the threat thereof, is entirely speculative.

We conclude that the first amendment does not vest public school teachers with authority to disregard established administrative mechanisms for approval of reading lists. Public schools have a legitimate pedagogical interest in shaping their own secondary school curricula and in demanding that their teachers adhere to official reading lists unless separate materials are approved. The first amendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.

We conclude that the district court erred in failing to hold as a matter of law that the teacher suffered no impairment of his first amendment rights and that this case involves a private dispute concerning his qualifications for continued teaching employment. Irrespective of the jury verdict, the school district is not liable to the plaintiff under section 1983 in light of the facts presented and, accordingly, we reverse.

I.

Plaintiff Timothy Kirkland served as a probationary history teacher for two academic years at a high school within the defendant Northside Independent School District ("Northside"). Northside declined to renew Kirkland's employment contract for the 1988-89 academic year, allegedly as a consequence of his use of a nonapproved reading list in his world history class, poor supervision of a special-discipline class, substandard teaching evaluations, and poor interaction with parents, students, and fellow teachers. Kirkland believes that his supervisors' complaints are pretextual justifications for nonrenewal of his contract; he asserts that in fact Northside dismissed him in order to censor the contents of his supplemental reading list.

It is undisputed that Northside provided Kirkland with a supplemental reading list for his 1986-87 history classes along with a copy of the guidelines used to develop and amend that list. Kirkland was aware of the guidelines and understood that, if he were dissatisfied, a separate body of reading material could be used in his classes if he obtained administrative approval. Kirkland, however, declined to procure Northside's approval of his substitute list ¹ and, accordingly, Northside was never afforded the opportunity to review the list.

Northside's supplemental reading list for world history included approximately ninety books, several of which are works of fiction. ² By comparison, Kirkland's list of forty-seven books are almost exclusively fictional. ³ Significantly, most of the books on Kirkland's list were already recommended reading for Northside's English courses, and all were available in the school's library.

As a general principle, Northside's reading lists for its separate courses are compiled for classroom use through an administrative process in which input is solicited at public hearings from parents, teachers, and professional educators. ⁴ Northside's guidelines require that books under consideration for addition to reading lists must conform to several criteria, two of which are imposed without exception: (1) The material must be examined and recommended by a member of Northside's staff, and (2) the material must "implement or enrich" the curriculum. Other criteria are applied selectively, depending upon the nature of the book scrutinized. ⁵

School officials responsible for supervising Kirkland recommended that his contract not be renewed at the end of 1987-88 academic year, and he received timely notice of Northside's decision to dismiss him upon completion of his contract. Upon request, he was heard before Northside's Board of Trustees, who reaffirmed the recommendation.

Kirkland sued Northside, alleging violations of his procedural due process and first amendment guarantees, as well as state law contractual violations. The case was tried before a jury. Upon completion of the evidence, the court rendered a partial directed verdict in favor of Northside as to the procedural due process and contractual claims. The court concluded that a probationary teacher was not entitled to procedural due process protection and that, since Kirkland was not terminated before the expiration of the academic year, no state law breach-of-contract claim existed.

Nevertheless, the court refused to direct a verdict as to the remaining first amendment claim. Despite Northside's motion, the court declined to address the preliminary legal issue of whether Kirkland's reading list constituted protected speech under the first amendment. Instead, over Northside's objection the court submitted, to the jury, special interrogatories that effectively delegated the first amendment determination thereto. ⁶

The jury answered the special interrogatories in favor of Kirkland and awarded $50,000 in damages. The trial court awarded attorneys' fees and postjudgment interest and ordered Northside to renew Kirkland's teaching contract for the following academic year. On appeal, Northside advances the argument that the court committed reversible error in not making the initial legal determination that the first amendment does not even apply in this dispute and, alternatively, that Kirkland is not entitled to reinstatement. ⁷ It asserts that this dispute is entirely a matter of private concern involving one teacher's employment qualifications.

Kirkland does not appeal the directed verdict rendered against him with respect to the procedural due process or state law contractual claims. However, he does argue that this case involves blatant censorship of his ideological views and that, as such, it raises a matter of public concern under first amendment jurisprudence. Specifically, plaintiff urges that school officials cannot squelch nonconforming viewpoints regarding what should be taught in public classrooms. Since matters of public concern, such as censorship, that are raised by public school teachers merit first amendment protection and bar retaliatory discharge, Kirkland believes that the trial court committed no error in submitting the special interrogatories to the jury and in ordering reinstatement after the favorable verdict.

II.

The first amendment's concise guarantee that every citizen may freely criticize the government without retaliation requires that we determine, in this case, whether a school district has breached this commandment with respect to one of its teachers. To prevail on his constitutional claim, Kirkland must establish a prima facie case (1) that his supplemental reading list is constitutionally protected speech and (2) that such speech proved to be a substantial or motivating factor in the decision not to rehire him. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). If Kirkland successfully carries the initial burden, Northside, in order to avoid liability, must then demonstrate by a preponderance of the evidence that it would not have rehired Kirkland even in the absence of the protected speech. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.

In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Court announced that the question of whether a public employee's speech is constitutionally protected turns upon the "public" or "private" nature of such speech. See id. at 146-48, 103 S.Ct. at 1689-91; Ferrara, 781 F.2d at 1512. The distinction is based upon the principle that "speech on public issues occupies the 'highest rung of the heirarchy [sic] of First Amendment values' and is entitled to special protection." Connick, 461 U.S. at 145, 103 S.Ct. at 1689 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982), and Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980)). For purposes of appellate review, the "inquiry into the protected status of speech is one of law, not fact." Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7. Consequently, we are entitled to review de novo the trial court's determination concerning the protected nature of Kirkland's reading list. ⁸

The definition of "matters of public concern" is imprecise. ⁹ As the Connick Court stated, "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and...