Lewis v. Harrison School Dist. No. 1
| Citation | 805 F.2d 310 |
| Decision Date | 08 January 1987 |
| Docket Number | No. 1,A,No. 85-2359,1,85-2359 |
| Parties | 35 Ed. Law Rep. 1002, 2 Indiv.Empl.Rts.Cas. 500 Bill LEWIS, Ed.D., Appellant, Judy Lewis, v. HARRISON SCHOOL DISTRICT NO. 1; Terry Humble, Superintendent of Schools, Harrison School District; Joe Bill Wilson, M.D., Tom Rogers, Cathy Brandt, Bobby Lowe, Robert Kent, D.D.S., Richard Hudson, James Harness, and Janet Clark, Individually and in their Official Capacities as Members of the Board of Education of the Harrison School District of Boone County, Arkansas, and Roy Horne and Joyce Lindsey, Individually and as Members of the School Board of the Harrison School District, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Philip E. Kaplan, Little Rock, Ark., for appellant.
G. Ross Smith, Little Rock, Ark., for appellees.
Before LAY, Chief Judge, and HEANEY and BOWMAN, Circuit Judges.
Bill Lewis brought suit under 42 U.S.C. Sec. 1983, claiming that Harrison School District No. 1 and several of its officials fired him as principal of the Harrison High School in violation of his constitutional right to free speech. The jury found in Lewis' favor and awarded him back pay and compensatory damages. The district court 1 set aside this verdict, detailing its reasoning in a published opinion. See Lewis v. Harrison School District No. 1, 621 F.Supp. 1480 (W.D.Ark.1985). The district court found (1) that as a matter of law Lewis' speech was not protected under the first amendment, (2) that constitutional damages could not be presumed, and (3) that the individual defendants were entitled to qualified immunity even if they did illegally fire Lewis. Upon review we sustain the dismissal of the presumed damage award, but vacate the judgment n.o.v. with directions to enter a judgment for the plaintiff on the remainder of the verdict.
Lewis was hired as principal of Harrison High School in Harrison, Arkansas in July of 1979. On February 20, 1981, Lewis was notified that he would be rehired for the 1981-82 school year. Judy Lewis, the wife of Bill Lewis, was also employed by Harrison High School as an English teacher and head girls' basketball and volleyball coach. Judy Lewis was selected in 1979 to chair the Professional Rights and Responsibilities Committee of the Harrison Education Association, a classroom teachers' organization. After her election, Judy Lewis wrote to the superintendent, Terry Humble, complaining about some lack of activity on the part of the district. On October 15, 1979, she had a meeting with Humble in which her new responsibilities as chairperson were discussed. Two days later, according to Bill Lewis, Humble stated that Lewis should "muzzle" his wife. 2
On April 17, 1981, Humble sent a letter to Judy Lewis stating that she probably would be transferred to the junior high for the following year. Bill Lewis went to Humble's office to protest the possible transfer. He later requested a special school board meeting, so that he could address the board. The meeting was scheduled for and held on May 12, 1981. A public notice of the meeting was published in the local newspaper prior to the meeting. The brief article described the meeting's subject as "the transfer of Judy Lewis." The record indicates that between 50 and 75 persons attended the special meeting. Minutes kept by the board secretary show that nine persons spoke, and all supported Judy Lewis.
Next, Lewis began to read a prepared speech. He first asserted that Judy Lewis' transfer would "violate common sense" and would be "a professional error if allowed to take place." According to the minutes, Lewis urged that "the purpose of the school is to offer the best quality education to the students stating this means quality teachers, administrators and support personnel must be employed to work in those areas they are qualified for and have experience [sic]." He added that before a transfer should take place "every person affected should be considered and be free to provide input." In Judy Lewis' case, no other person had been consulted. Lewis then brought up the "lack of professionalism" the superintendent had displayed toward his wife in her new role as head of the teachers' committee. At that point board member Richard Hudson interrupted Lewis and moved that the board go into executive session. Once in executive session, Lewis declined an offer to finish his speech. The board then returned to open session, reprimanded Lewis for his public "attack" on the superintendent and board, and then adjourned the meeting. The minutes indicate that the board heard comments and answered questions after the meeting, and Judy Lewis made a statement.
On June 26, 1981, one and a half months after his speech at the May 12 special meeting, Lewis received written notice of a recommendation that his employment contract not be renewed for the 1981-82 school year. The letter to Lewis, signed by board member Tom Rogers, gave four reasons for the recommendation of dismissal:
(1) your admitted lack of confidence in the abilities and judgment of the Superintendent who is your immediate supervisor; (2) your recent comment that you will feel free to make an independent determination whether the Superintendent's actions are in keeping with Board policy and to decline to support him if you conclude they are not; (3) your selection of an entirely inappropriate manner (a public board meeting) to express your dissatisfaction and lack of confidence in the Superintendent's job performance and judgment; and (4) my judgment that under these circumstances, it will be virtually impossible for you to develop and maintain the kind of professional rapport necessary to an efficient cooperative and harmonious administrative relationship with the Superintendent.
Lewis was eventually told that his position would end on July 10, 1981. He requested a hearing, which was held on August 25, 1981. Immediately after the hearing, the board unanimously voted to terminate Lewis' employment. Lewis filed the present suit on February 24, 1984. 3
At the close of evidence, the trial court submitted ten interrogatories to the jury. In its answers to these interrogatories, the jury found that the positions of superintendent and principal required a "close working relationship between them for a proper operation of the school system," but that Lewis' May 12 speech "did not create such disharmony" between Lewis and Humble "that it would have been impossible for Bill Lewis to have properly performed his duties * * * thereafter." The jury also found that the speech did not have and would not have had a disruptive effect on the school had Lewis not been fired.
In response to a fourth interrogatory, the jury found that "the matters addressed by Dr. Lewis at the board meeting" were not "matters of public concern or matters of public discussion at or before the time of [the] meeting." The jury added that Lewis did not know before the meeting that the proposed transfer would not be made. In answer to another interrogatory, the jury found that Bill Lewis' May 12 speech "was a substantial or motivating factor in the school board's decision to terminate his employment." Finally, the jury found that Lewis would not have been fired had he not made the May 12 speech.
The jury awarded Lewis $25,348 for lost wages and $5000 for "violation of [his] first amendment right to freedom of speech." The district court set aside these awards upon the defendant's motion for judgment n.o.v. This appeal followed.
The district court concluded that Lewis' speech "did not involve matters of current legitimate public concern, under Connick [v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ], and even if it did, is nonetheless not protected under the First Amendment applying the Pickering [v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ]-balancing test." See 621 F.Supp. at 1498. As the court's case citations suggest, this is an area in which the United States Supreme Court has in recent years provided a framework for analysis.
First amendment decisions in the public-employee-firing context require application of a three-step process. 4 See Roberts v. Van Buren Pub. Schools, 773 F.2d 949, 953 (8th Cir.1985). The first step is to determine whether the speech was "protected" under the Constitution. Under Connick, only speech addressing a "matter of public concern" is protected. See 461 U.S. at 146-47, 103 S.Ct. at 1689-90. Even then, Pickering instructs the court to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." See 391 U.S. at 568, 88 S.Ct. at 1734. To be protected, speech must pass both the Connick and Pickering tests. The second and third steps involve causation. The employee must show that the speech "was a substantial or motivating factor in the adverse employment decision." Roberts, 773 F.2d at 953. Finally, the defendant "may show that the employment action would have been taken even in the absence of the protected conduct." Id. at 953-54.
The first question--whether Lewis' speech was "protected"--is one of law. See Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7; Roberts, 773 F.2d at 954. Although our decision in McGee v. South Pemiscot School Dist. R-V, 712 F.2d 339 (8th Cir.1983), does require the court to follow the jury's findings on certain underlying facts, such as whether the speech created disharmony, see id. at 342, we find no precedent for use of a jury finding on the issue of public concern. The jury found that Lewis' speech did not involve matters of public concern on or before May 12. Even if McGee is read to require deference to jury findings...
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