Harris v. Victoria Independent School District

                          Revised March 12, 1999

                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                              No.    97-41015




                       DWIGHT HARRIS; GENE MARTIN,

                                                  Plaintiffs - Appellants,

                                    VERSUS

 VICTORIA INDEPENDENT SCHOOL DISTRICT; PAUL KORNFUEHRER, in his
official and individual capacities; CLAY CAIN, in his official and
individual capacities; IVAN GREEN, in his official and individual
capacities; RANDY POLLARD, in his official and individual
capacities; MARGARET EASLEY, in her official capacity only; REUBAN
MURRAY, in his official capacity only; THERESA GUITIERREZ, in her
official capacity only; ROBERT P BREZINA, in his official and
individual capacities,

                                                   Defendants - Appellees.




          Appeal from the United States District Court
               for the Southern District of Texas

                              March 4, 1999

Before SMITH, DUHÉ, AND WIENER, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

     This appeal arises from the reprimand and transfer of two

teachers at Victoria High School (“VHS”), Dwight Harris and Gene

Martin (collectively “Plaintiffs”), as a result of their speech at

a   December     8,    1995   committee       meeting.     Robert   Brezina,

Superintendent    of    the   Victoria       Independent   School   District
(“VISD”),   reprimanded   the   Plaintiffs   and   transferred   them   to

different campuses during the 1994-95 school year because of their

speech.   After the VISD Board of Trustees affirmed Superintendent

Brezina’s decision, the Plaintiffs sued Brezina, members of the

Board1, and VISD (collectively “Defendants”), alleging that they

were transferred and reprimanded in violation of their First

Amendment rights.    The district court granted the Defendants’

Motion For Summary Judgment on the ground that the Plaintiffs did

not speak on a matter of public concern, and the Plaintiffs

appealed. Because we hold that the Plaintiffs engaged in protected

speech, the Defendants are not entitled to qualified or absolute

immunity, and the Board of Trustees’ actions were pursuant to

official policy, we reverse and remand for further proceedings.

                                BACKGROUND

      In the beginning of the 1995-96 school year, there was an

escalating conflict at VHS concerning the performance rating of the

school and its principal, Melissa Porche. At the same time, Harris

and Martin’s colleagues elected them faculty representatives of

VHS’s site based decision-making committee (“SBDM”).        The SBDM is

part of a program created by the Texas Legislature to improve the

quality of public schools through increased input from multiple




  1
   The Board of Trustees Defendants are Paul Kornfuehrer, Clay
Cain, Ivan Green, Randy Pollard, Margaret Easley, Reuban Murray,
and Theresa Guitierrez.

                                    2
sources.2     Each SBDM includes faculty representatives, parents,

community members and business representatives.

      In the fall semester, Harris and Martin met with Brezina and

expressed the faculty’s concerns about Principal Porche and gave

Brezina a memorandum outlining them.              As a result of this meeting,

Superintendent Brezina hired a consultant to work with the SBDM,

the faculty and Porche to improve the situation.                After Brezina

received the consultant’s report, he formed a sub-committee of the

SBDM to create an improvement plan for VHS.             Brezina appointed all

of the faculty members who were SBDM members, including Harris and

Martin, to serve on this newly formed Internal Component Committee

(“ICC”).

      The ICC distributed its improvement plan in Mid-October, but

by the December 8, 1995 meeting of the ICC the situation at VHS had

not improved.      Part of the December 8th meeting was set aside to

discuss     the   implementation   of       the   improvement   plan   and   its

progress.     Harris reported that many of the faculty members felt

Porche was not following the plan, and that VHS needed a new

principal to improve the situation.               Martin agreed and added if

Brezina did not do something, the faculty would revolt.             Martin and

Harris also called individual VISD Trustees relaying the same

message.

      After the December 8th meeting, Brezina reprimanded both


  2
   See 

Tex. Educ. Code Ann. § 11.253

 (Vernon 1996).

                                        3
Plaintiffs and transferred Harris to another high school to teach

the same subjects and Martin to a guidance center to teach new

subjects to middle school students.       The VISD Board of Trustees

affirmed Brezina’s decision in a grievance hearing.

     After the Board’s affirmance, the Plaintiffs sued, alleging

the transfers were in retaliation for their exercise of protected

speech.    The district court granted the Defendants’ Motion For

Summary Judgment ruling that while the Plaintiffs’ transfer was an

adverse employment decision, they had not spoken on a matter of

public concern.   The Plaintiffs appealed.

                             DISCUSSION

I.   First Amendment Claim

     The Plaintiffs contend their speech was on a matter of public

concern.   The Defendants argue the Plaintiffs’ speech was not on a

matter of public concern, and alternatively, that the Plaintiffs

did not suffer an adverse employment decision.

     This court reviews the district court’s determination de novo.

 See La. Bricklayers & Trowel Trades Pension & Welfare Fund v.

Alfred Miller General Masonry Contracting Co., 

157 F.3d 404, 407

(5th Cir. 1998); see also Willis v. Roche Biomedical Laboratories,

Inc., 

61 F.3d 313, 315

 (5th Cir. 1995).    We must determine whether

the pleadings and other summary judgment evidence demonstrate there

is no genuine issue as to any material fact, and whether the

Defendants are entitled to judgment as a matter of law.       

Id.

 at


                                 4
1371. The inferences to be drawn from the underlying facts must be

viewed in the light most favorable to the party opposing the

motion.       See Victor v. McElveen, 

150 F.3d 451, 454

 (5th Cir. 1998)

(citing United States v. Diebold, Inc., 

369 U.S. 654, 655

 (1962)).

          The government may not constitutionally compel persons to

relinquish their First Amendment rights as a condition of public

employment.          E.g., Keyishian v. Board of Regents of the Univ. of

the State of N.Y., 

385 U.S. 589

 (1967).                     The Plaintiffs must

satisfy four elements to recover for a First Amendment retaliation

claim.       First, the Plaintiffs must suffer an adverse employment

decision.          See Harrington v. Harris, 

118 F.3d 359, 365

 (5th Cir.

1997).       Second, the Plaintiffs’ speech must involve a matter of

public concern.          See Thompson v. City of Starkville, 

901 F.2d 456, 460

 (5th Cir. 1990) (citing Connick v. Meyers, 

461 U.S. 138, 147

(1983)).          Third, the Plaintiffs’ interest in commenting on matters

of       public    concern    must   outweigh   the   Defendants’    interest    in

promoting efficiency. 

Id.

 (citing Pickering v. Board of Education,

391 U.S. 563, 568

 (1968)).              Fourth, the Plaintiffs’ speech must

have motivated the Defendants’ action.                

Id.

    (citing Mt. Healthy

City School Dist. v. Doyle, 

429 U.S. 274, 287

 (1977)). Because it

is       undisputed    that   Plaintiffs’      transfers    and   reprimands   were

motivated by the Plaintiffs’ speech at the December 8th meeting, we

address only the first three requirements specifically.3

     3
   Superintendent Brezina’s testimony that he transferred the
Plaintiffs because of their conduct at the December 8th meeting is

                                           5
A.       Did the Plaintiffs suffer an adverse employment action?

          Superintendent Brezina, in mid-term, transferred Harris to

another high school to teach the same subjects and Martin to an

alternative      learning      center    for      disruptive    students     to    teach

subjects and grade levels he had not taught before.                  Additionally,

Brezina reprimanded the Plaintiffs in their transfer letters, and

included       the   letters     in     the       Plaintiffs’    personnel        files.4

Subsequently, the Board of Trustees affirmed Brezina’s actions in

a grievance hearing.

          The district court held that these facts constituted an

adverse employment decision, and we agree.                      We recognize        that

federal courts should be extremely hesitant “to invade and take

over” in the area of education; a federal court is not the

appropriate forum in which to seek redress over “faculty disputes

concerning teaching assignments, room assignments, administrative

duties, classroom equipment, teacher recognition, and a host of

other relatively trivial matters.”                  Dorsett v. Board of Trustees

for States Colleges & Universities, 

940 F.2d 121, 123-24

 (5th Cir.



undisputed.
     4
    Superintendent Brezina’s January 8, 1995 letters to Harris and
Martin stated:
   [r]ecent events, statements and other conduct on your part
   have led me to the conclusion that you are unable and/or
   unwilling to maintain the commitment you made to these goals
   and to the improvement process. It is apparent to me that
   neither the team nor I will be able to bring about a
   resolution that will satisfy you and remove or alleviate your
   discontent.

                                              6
1990)(citing Connick v. Myers, 

461 U.S. 138, 138-39

 (1983)).

However, we have repeatedly held that reprimands and demotions

constitute adverse employment decisions.   See Benningfield v. City

of Houston, 

157 F.3d 369, 377

 (5th Cir. 1998)(noting that a formal

reprimand constitutes an adverse employment decision); Harrington,

118 F.3d at 365

 (“Adverse employment actions are discharges,

demotions, refusals to hire, refusals to promote, and reprimands.”)

(citing Pierce v. Texas Dep’t of Crim. Justice Inst. Div., 

37 F.3d 1146, 1149

 (5th Cir. 1994)).

      We also recognize   that “a plaintiff’s subjective perception

that a demotion has occurred is not enough” to constitute an

adverse employment decision.    Forsyth v. City of Dallas, 

91 F.3d 769, 774

 (5th Cir. 1996).    However, the record reflects that the

Plaintiffs’ transfers, viewed objectively, constitute a demotion .5

Superintendent Brezina testified that he intended the transfers to

be disciplinary in nature, and that he merely reprimanded another

faculty member because her actions were not as serious as the

Plaintiffs.6   Additionally, both Brezina and Board of Trustees


  5
   We have also recognized that a transfer not involving a
reduction in pay may constitute an adverse employment decision.
See Forsyth v. City of Dallas, 

91 F.3d 769, 774

 (5th Cir. 1996);
Vojvodich v. Lopez, 

48 F.3d 879

 (5th Cir. 1995); Thompkins v.
Vickers, 

26 F.3d 603, 610-611

 (5th Cir. 1994); Click v. Copeland,

970 F.2d 106, 109

 (5th Cir. 1992); Fyfe v. Curlee, 

902 F.2d 401

(5th Cir. 1990).
  6
   Superintendent Brezina reprimanded Janice Plowman, another
faulty member on the ICC, because she attended a meeting of VHS
teachers at a mall concerning Principal Porche.

                                  7
member Gutierrez testified that they could not recall a mid-term

involuntary transfer of a teacher at VHS, except in one instance

which resulted from a reduction in force order.7                    Gutierrez further

testified      that        the    transfers      branded      the     Plaintiffs     as

“troublemakers” and “not team players.”                 Taken together, we agree

with    the   district       court   that      these   reprimands     and   transfers

constitute adverse employment decisions.

 B.    Was the Plaintiffs’ speech on a matter of public concern?

       “In    order    for       speech   by    a   public    employee      to    enjoy

constitutional protection from retaliation by a public employer,

the speech must involve a matter of public concern.”                        Denton v.

Morgan, 

136 F.3d 1038, 1042

 (5th Cir. 1998) (citing Connick v.

Meyers, 

461 U.S. 138, 147

 (1983)).               To rise to the level of public

concern, the Plaintiffs’ must speak primarily in their roles as

citizens rather than as employees addressing matters only of

personal concern.          See 

id.

 (internal citations omitted).                 We look

to the content, form, and context of the speech, as revealed by the

whole    record,      in    determining     whether     the    Plaintiffs’       speech

addresses a matter of public concern.                  See Connick, 

461 U.S. at 147-48

; see also Benningfield, 

157 F.3d at 375

.                          Determining

whether speech meets this threshold is a fact specific analysis.

See Thompson, 

901 F.2d at 461-62

. Examining the Plaintiffs’ speech

  7
   This case does not involve a mere administrative change in
teaching assignments, but a mid-term transfer to an entirely
different school, and in Martin’s case, unfamiliar subjects and
grade levels.

                                            8
in light of the above considerations, we hold that the Plaintiffs’

speech was on a matter of public concern.

      Brezina testified that he transferred and reprimanded the

Plaintiffs as a result of their speech and actions at the December

8th ICC meeting.    The Plaintiffs alleged at this meeting they told

Brezina that many of the faculty believed Principal Porche was not

following the improvement plan, that her replacement was necessary

to alleviate the problems, and that the faculty would revolt if

Brezina did not do something.8

      The Plaintiffs emphasize that the context and form of their

speech indicate it was on a matter of public concern.         They contend

that they spoke at the meeting as elected representatives of the

faculty, and that they simply communicated the views of the faculty

to the administration in compliance with their duties as committee

members.    The Plaintiffs point out that the stated purpose of the

ICC’s meeting    was   to   check   the   progress   of   implementing   the

improvement plan.      They argue that when they gave feedback as

requested, Brezina punished them because he did not like their

message.

      The Defendants argue the Plaintiffs spoke only in their role

as employees, and that their speech was mere criticism of their

immediate    supervisor’s    administration     of   the    school.      The

  8
   Brezina testified in his deposition that the Plainitffs turned
their chairs facing away from the Principle Porche at this meeting
in an act of defiance and disrespect to both the Principal and
himself, but the Plaintiffs specifically denied these actions.

                                     9
Defendants interpret our cases as holding that when a public

employee speaks in his role as an employee, his speech may only be

considered on a matter of public concern if it involves the report

of corruption or wrongdoing to higher authorities. They argue that

because the Plaintiffs’ speech does not fall within that limited

exception, their speech is not on a matter of public concern.

      The Plaintiffs’ speech does not fit neatly within any of the

factual scenarios in which we have held speech involved a matter of

public concern.     The Plaintiffs rely on cases where we have held

that an employee’s testimony before a fact-finding or adjudicatory

body is inherently a matter of public concern.          See Johnston v.

Harris County Flood Control District, 

869 F.2d 1565, 1577

 (5th Cir.

1989); Reeves v. Claiborne County Bd. Of Educ., 

828 F.2d 1096, 1100

(5th Cir. 1987).9     While the Plaintiffs were not faced with the

choice of perjuring themselves or losing their job, they were faced

with the choice of either telling the truth and fulfilling their

duty as committee members or keeping silent and frustrating their

purpose and function on the committee.     See Victor v. McElveen, 

150 F.3d 451, 458

   (5th   Cir.   1998)(“[W]hen   an   employee   speaks   in

response to an invitation and on a matter pertinent to that

request, the context factor weighs in his favor.”)         By protecting

the Plaintiffs’ speech when the administration requested them, as


  9
   Accord Green v. Philadelphia Housing Authority, 

105 F.3d 882, 886

 (3rd Cir. 1997) (holding that employee’s voluntary testimony is
also inherently a matter of public concern).

                                    10
committee members, to speak truthfully on the school’s progress, we

are protecting “the integrity of the truth seeking process.”           See

Green, 

105 F.3d 882,886

 (3rd Cir. 1997).10

       An employee’s speech may contain an element of personal

interest and yet still qualify as speech on a matter of public

concern. See Benningfield, 

157 F.3d at 375

; see also Thompson, 

901 F.2d at 463-65

.    The Plaintiffs certainly had an interest in their

speech as employees, because they could not help but benefit as

teachers from the improvement of the educational environment at

VHS.    However, they also had strong interests as committee members

in achieving the goals the committee set for itself and the school.

The Defendants did not point to any evidence of an underlying

personal dispute between the Plaintiffs and Principle Porche.

There is no evidence that the Plaintiffs’ speech merely concerned

an employment related squabble with their supervisor.            In fact,

there    is   evidence   to   the    contrary,   establishing   that   both

Plaintiffs were constantly involved in attempts to raise the level

of education at VHS.

       Another factor considered in determining whether speech is on

a matter of public concern is whether the comments were made

against a backdrop of widespread debate in the community.              See

Tompkins, 

26 F.3d 603, 607

.         Several board members testified that


  10
    The outcome of this fact specific determination might have been
different had the Plaintiffs not been committee members reporting
the views of the faculty at large to the administration.

                                      11
faculty members and parents called board members with concerns

about VHS. Board of Trustees member Margaret Easley testified that

people even stopped her at the grocery store and church with

concerns about the situation at VHS.               Additionally, the local

newspaper ran a story indicating the low performance rating VHS

received from the Texas Department of Education.                In light of the

above considerations, we hold that the Plaintiffs did speak on a

matter of public concern and reverse the district court.

C.   Pickering Balancing

      We must next consider whether the Plaintiffs’ interest in free

speech outweighs “the interest of the state, as an employer, in

promoting the efficiency of the public services it performs through

its employees.”        Victor, 

150 F.3d at 457

 (citing Pickering, 

391 U.S. at 568

.)        In striking this balance we should examine whether

the speech was likely to generate controversy and disruption,

impeded   the    school’s    general     performance    and     operation,    and

affected working relationships necessary to the department’s proper

functioning.     See Brawner v. Richardson, 

855 F.2d 187, 192

 (5th

Cir. 1988)(citing Pickering, 

391 U.S. at 569-73

).

      The Defendants argue that the Plaintiffs’ speech demonstrated

their   lack    of    commitment   to    the   improvement    plan,   therefore

jeopardizing the plan’s success. They assert Brezina was justified

in   removing    the    Plaintiffs      from   VHS’s   campus    to   allow   the

improvement plan to effectively resolve the problems on campus.



                                        12
      The Defendants do not offer any evidence that the Plaintiffs’

speech disrupted the school’s operations or performance.           In fact,

the improvement plan specifically designated that the content of

the ICC meetings was to be confidential.         The events on the campus

after the Plaintiffs’ transfer indicate that Brezina’s conclusion

was incorrect.    Ultimately, both Brezina and Principal Porche were

removed from VHS’s campus.           The Plaintiffs’ speech and actions

throughout the turmoil at VHS indicate their intent to improve the

situation at the school rather than abandon the goals of the

committee and the improvement plan.           For the above reasons, we

strike the balance in favor of the plaintiffs’ interest in free

speech.

II.    Immunity

A.    Qualified Immunity

      The Defendants argue as an alternative that their qualified

immunity supports the district court’s grant of summary judgment,

even if Plaintiff’s speech is protected and they did suffer an

adverse employment decision.         The district court did not reach the

issue.

      Qualified immunity shields certain public officials performing

discretionary     functions   from    civil   damage   liability   if   their

actions could reasonably have been thought consistent with the

rights they are alleged to have violated.        Duckett v. City of Cedar

Park, 

950 F.2d 272, 279

 (5th Cir. 1992) (citing Anderson v.


                                      13
Creighton, 

483 U.S. 635, 638

 (1987)).            Whether a defendant is

entitled to qualified immunity is a two step inquiry.             See Hayter

v. City of Mount Vernon, 

154 F.3d 269, 274

 (5th Cir. 1998).             The

first question is whether the plaintiff alleged the violation of a

clearly established constitutional right.         See Seigert v. Gilley,

500 U.S. 226, 232

 (1991).        The second question is whether the

defendant’s conduct was objectively reasonable in light of clearly

established constitutional law.         See Hayter, 

154 F.3d at 274

.

“Even if a defendant’s conduct actually violates a plaintiff’s

constitutional   right,   the   defendant   is   entitled    to   qualified

immunity if the conduct was objectively reasonable.”         Duckett, 

950 F.2d at 280

.

     The Defendants contend they are entitled to qualified immunity

because the law concerning the Plaintiffs’ type of speech was not

clearly established at the time of their conduct.        They argue that

a right can rarely be considered clearly established when the law

requires the balancing of interests in determining whether the

Plaintiffs’ speech is constitutionally protected.           See Medina v.

City and County of Denver, 

960 F.2d 1493, 1498

 (10th Cir. 1992);

Borucki v. Ryan, 

827 F.2d 836, 848

 (1st Cir. 1987).         The Defendants

assert they should not be punished for making an incorrect judgment

call in this particular case.     The Plaintiffs argue there does not

have to be a case directly on point for the law to be deemed

clearly established, and that existing employee speech law was

clearly established under these facts.      See Anderson v. Creighton,

                                   14


483 U.S. 635, 640

 (1987) (“this is not to say that an official

action is protected by qualified immunity unless the very action in

question has previously been held unlawful.”); see also Hassan v.

Lubbock Indep. Sch. Dist., 

55 F.3d 1075, 1079

 (5th Cir. 1994).

     The Defendants are not insulated from their unconstitutional

conduct   merely        because   a   balancing   test   is   involved   in   our

analysis.        While employee speech cases are a likely vehicle for

varied fact scenarios, the law is clearly established that a “mix

of public and private speech” may be constitutionally protected.

Benningfield, 

157 F.3d at 375

; Warnock v. Pecos County, Texas, 

116 F.3d 776, 782

 (5th Cir. 1997)(“a public employee can make a single

statement both as an employee and as a citizen.”)

B.   Absolute Immunity

     Board of Trustees Defendants Cain, Kornfuehrer, Pollard and

Green argue they are entitled to absolute immunity because their

actions     in    the    Level    III   Grievance   Hearing     reviewing     the

Plaintiffs’ transfer were quasi-judicial in nature.                      For the

following reasons, we hold that the Board Member Defendants are not

entitled to absolute immunity.

     “It is generally understood that a judge, and those similarly

situated, have absolute immunity for judicial acts.”                 Mylett v.

Mullican, 

992 F.2d 1347, 1352

 (5th Cir. 1993).                  We examine the

character of a governmental officer’s duties and the relationship

to the parties when determining whether he is entitled to absolute



                                         15
immunity.      

Id.

 (citing Stump v. Sparkman, 

435 U.S. 349

 (1978)).

“If the functions are of a judicial nature then we must weigh the

costs and benefits of denying or affording absolute immunity.”

O’Neal v. Mississippi State Board of Nursing, 

113 F.3d 62, 65

 (5th

Cir. 1997).     The following six factors are characteristics of the

judicial process and are instructive in determining whether the

Defendants are entitled to absolute immunity: (1) the need to

assure that the individual can perform his functions without

harassment or intimidation; (2) the presence of safeguards that

reduce   the    need    for    private      damages   actions   as    a    means   of

controlling unconstitutional conduct; (3) insulation from political

influence; (4) the importance of precedent; (5) the adversarial

nature of the process; and (6) the correctability of error on

appeal. See 

id.

 (citing Cleavinger v. Saxner, 

474 U.S. 193, 202

(1985)).       “No     one    factor   is     controlling   and      the   list    of

considerations is not intended to be exclusive.”                Mylett, 

992 F.2d at 1353

.

     The Defendants rely on Hernandez v. Hayes, 

931 S.W.2d 648

(Tex.App.-San Antonio, 1996, writ denied), arguing that the Texas

school board grievance procedures are quasi-judicial, therefore

entitling the Board of Trustees Defendants to absolute immunity.

Hernandez dealt with the absolute privilege under Texas law granted

to a witness testifying in a quasi-judicial proceeding against

civil liability for defamation.               While the court held that the



                                         16
grievance procedures were quasi-judicial in nature, it analyzed the

procedure using different factors from the federal rule.                  See

Hernandez, 

931 S.W.2d at 652

.

       The Plaintiff’s rely on the Supreme Court’s decision denying

absolute immunity to school board members in Wood v. Strickland,

420 U.S. 308, 320

 (1975).       The Court held that affording absolute

immunity to school board members was unwarranted “since it would

not sufficiently increase the ability of school officials to

exercise their discretion in a forthright manner to warrant the

absence of a remedy” for constitutional violations. Wood, 

420 U.S. at 320

.

       While   Wood   dealt   with   a   school   board’s   discipline   of a

student, at least one other circuit has extended this holding to

deny absolute immunity to school boards’ decisions concerning a

faculty member’s employment.         See Stewart v. Baldwin County Board

of Education, 

908 F.2d 1499, 1507-08

 (11th Cir. 1990) (holding the

Court’s ruling precludes an extension of absolute immunity to board

members’ decision to terminate faculty member).             Additionally, the

record indicates that the school board members were elected,

illustrating that they are not insulated from political forces as

are appointed governmental officials.11           While it is important that

the school board members are able to make decisions “free from the

threat of incurring personal liability for every decision they hand

  11
    The parties failed to apply the above factors or specify any of
the school board’s procedures in their briefs.

                                         17
down”, O’Neal, 

113 F.3d at 66

, we believe that qualified immunity

affords them sufficient protection. For the above reasons, we hold

the Defendants are not entitled to qualified immunity.

III.    VISD’s section 1983 liability

       VISD      alternatively        contends       the     Plaintiffs     failed      to

demonstrate that constitutional violations occurred as a result of

school district policy or custom.                  The Plaintiffs argue VISD is

subject     to     §    1983   liability    through        Superintendent    Brezina’s

actions because the Board of Trustees delegated their policymaking

authority in the area of employment policy to him. Alternatively,

they contend VISD is subject to liability through the Board of

Trustees’ actions as policymakers in affirming the Plaintiffs’

transfers in the grievance hearing.

       “A   municipality        may    be   held     liable     under   §   1983     when

‘execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury.’” Doe v. Dallas

Indep. Sch. Dist., 

153 F.3d 211

, 215 (5th Cir. 1998) (citing Monell

v. Dep’t of Soc. Services of New York, 

436 U.S. 658, 691

 (1978)).

On at least two separate occasions, we have held that the board of

trustees      of       an   independent     school     district    in     Texas    is   a

policymaker for purposes of § 1983.                See Doe, 153 F.3d at 216; Jett

v. Dallas Indep. Sch. Dist., 

7 F.3d 1241, 1245

 (5th Cir. 1993).

The Board of Trustees’ action in affirming Superintendent Brezina’s



                                            18
decision to transfer the Plaintiffs was an act that “may fairly be

said to represent official policy” because of the Board’s status as

a policymaker.   Doe, 153 F.2d at 215.    As a result, VISD’s argument

fails.

                             CONCLUSION

     For the foregoing reasons, we reverse the district court’s

grant of summary judgment for the Defendants and remand to the

trial court for further proceedings.

     REVERSED AND REMANDED




                                 19
JERRY E. SMITH, Circuit Judge, dissenting:



     Federal courts have “neither the competency nor the resources

to undertake to micro-manage the administration of thousands of

state educational institutions.”            Dorsett v. Bd. of Trustees,

940 F.2d 121, 123-24

 (5th Cir. 1991).          Because the majority adopts

too expansive a definition of protected speech for public employ-

eesSSand thereby takes another step toward constitutionalizing the

management of public schoolsSSI respectfully dissent.



                                      I.

     I    disagree   with    the   majority’s    characterization      of   the

plaintiffs’s   speech   “as    a   matter   of    public   concern.”        When

analyzing this question, a court should consider the “content, form

and context of a given statement, as revealed by the whole record.”

Connick v. Myers, 

461 U.S. 138, 147-48

 (1983).             While determina-

tions of whether speech is a matter of public concern are necessar-

ily fact-specific, the majority nonetheless departs from this

circuit’s precedent. In particular, the majority fails properly to

analyze the content of the plaintiffs’ speech and, in doing so,

lowers the requirements for plaintiffs asserting similar causes of

action.



                                      A.

     This    circuit   has    never   before     held   that   an   employee’s
criticism of his immediate supervisor for mismanagement and job

performance constitutes a matter of public concern.                   In fact, we

consistently have refused to extend First Amendment protection to

a public employee speaking in his role as an employee unless the

speech “involves the report of corruption or serious wrongdoing.”12

The cited cases teach us that we should analyze the content of an

employee’s speech about his supervisor for discussion of “serious

wrongdoing.”          This may include claims of sexual harassment or

racial discrimination, for example, but should be more than simply

criticisms of a supervisor’s job performance or management skills.

        The   plaintiffs    seek   protection     for    their   speech   at   the

December 8, 1995, meeting related to questions of school management

and budgetary allocations.          More specifically, almost all their

comments returned to the question of the ability of their direct

supervisor, Porche, to lead the faculty and administer the school.

        These facts distinguish this case from Tompkins, the most

analogous      fact    situation   cited    by   the    plaintiffs.    Here,   the

plaintiffs were discussing the management of their own school,

whereas Tompkins had been criticizing the cancellation of a program

   12
      Wallace v. Texas Tech. Univ., 

80 F.3d 1042, 1050-51

 (5th Cir. 1996)
(holding that speech about financial assistance and handling racial
discrimination does not qualify as protected speech); see also Kirkland v.
Northside Indep. Sch. Dist., 

890 F.2d 794

 (5th Cir. 1989) (reasoning that
teacher’s choice of curriculum does not qualify as “matter of public concern”);
cf. Wilson v. UT Health Ctr., 

973 F.2d 1263, 1266

 (finding speech alleging sexual
harassment a matter of public concern); Thompson v. Vickers, 

26 F.3d 603, 606

(5th Cir. 1994) (finding speech alleging racial discrimination a matter of public
concern); Benningfield v. City of Houston, 

157 F.3d 369, 375

 (5th Cir. 1998)
(finding speech alleging hostile work environment and tampering with criminal
histories a matter of public concern).

                                       21
at another school.      Thus, the instant plaintiffs have a much

greater personal stake in the consequences of their speech.

     Additionally, Tompkins had alleged that the art program had

been canceled for reasons of racial discrimination on the part of

his superintendent; this obviously is a higher level of wrongdoing

than is alleged here.    Moreover, while the plaintiffs' December 8

speech was not in relation to a threat of transfer or termination,

it nonetheless focused exclusively on their direct supervisor’s

role in the administration of the school and resembles an employ-

ment dispute more than does Tompkins’s general statement about

school policy.    In sum, the district court correctly followed this

circuit’s precedent in holding that the content of the plaintiffs’

speech at the December 8 meeting does not rise to the level of

“serious wrongdoing” that this court has required.



                                      B.

     The majority also relies on the “backdrop of widespread debate

in the community.”      But the district court found that there is

little support for the plaintiffs’ argument that their criticisms

of Porche had been made in the context of a larger public debate

over Porche’s management of the high school.            For instance, the

court found that the single newspaper article offered by the

plaintiffs did not raise any of the plaintiffs’ concerns about the

management of the school or of its principal.           It found no other

evidence   of   widespread   public    debate   other   than   inconclusive

                                      22
private communications between individual faculty members and the

board of trustees.      Therefore, the court properly refused to find

that the plaintiffs’ comments were made “in the context of a

continuing commentary that had originated in [a] public forum.”

Tompkins, 

26 F.3d at 607

 (quoting Brawner v. City of Richardson,

855 F.2d 187, 192

 (5th Cir. 1988)).



                                      II.

      I agree with the district court that when reviewed together,

the content, form, and context of the plaintiffs’ speech do not

sufficiently involve a matter of public concern to the degree

required to receive First Amendment protection.              The form of the

speech does not by itself establish that it involved a matter of

public concern.13       Moreover, the plaintiffs have offered little

evidence to support their argument that there was widespread public

debate on the matter.        Most importantly, however, the content of

the speech seems narrowly focused on the performance and conduct of

their direct supervisor.          Without alleging seriously wrong or

corrupt conduct, the plaintiffs have little basis for claiming

First Amendment protection.

      The Supreme Court created the “public concern” requirement to



   13
      While I do not disagree with the majority’s conclusion that the form of the
plaintiffs’ speech weighs in their favor, the fact that they were invited to
speak does not necessarily create a“matter of public concern.” The other two
factorsSSespecially the content of the speechSSare key to determining that the
speech was not a matter of public concern.

                                       23
prevent “intrusive oversight by the judiciary in the name of the

First Amendment.”   See Connick, 

461 U.S. at 147-48

.   Previously,

this court has followed these instructions by limiting the notion

of public concern to cases of serious wrongdoing, so as to dissuade

litigants from using federal courts to settle employment and

management disputes.   The majority departs from this approach and

unwisely expands the notion of public concern to include disputes

between employees and their supervisors.   Accordingly, I respect-

fully dissent.




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