Dr. Nolan L. Kinsey v. Salado Independent School District
950 F.2d 988
5th Cir.
1992
Check Treatment

*2 Judge, CLARK, Chief Before WILLIAMS, KING, POLITZ, GOLDBERG, HIGGINBOTHAM, JOLLY, GARWOOD, DUHÉ, JONES, SMITH, DAVIS, BARKSDALE, EMILIO M. WIENER, GARZA, Judges.* Circuit * this decision. participate in DeMoss, elected after sworn in Jr. was Judge R. Harold argued banc to the en this case

BARKSDALE, aligned Judge. Kinsey had become with the four- Circuit majority, including presi- Board member case en banc to consider the We took this dent, Berry. Berry Don and two others protection vel non afforded the First up from the for re-election (as Four incorporated Amendment *3 (Berry’s). and ran as a slate One of the teenth) superintendent, public school to a minority members of the Board Ha- —Glen opposed through Dr. Nolan L. shortly against gler, who had before voted winning slate in a speech and affiliation renewing Kinsey’s contract—and two oth- and was relieved of school board election (Hagler’s) against Berry’s. ers ran As not- (but compensation) full his duties with ed, one issue concerned the Board’s role: Kinsey sued the Salado the new Board. Kinsey’s view was that the Board estab- (the District and others Independent School policy, but he run the schools lished was to District), including asserting claims daily on a basis. process for of due under the violations Fourteenth Amendment and freedom of supported Berry’s Kinsey’s superinten association) speech (including of under the Likewise, dency; Hagler’s opposed it. Kin Summary judgment granted First. was sey openly expressed support Berry’s former; against judgment notwith opposition Hagler’s. Kinsey sup and verdict, standing against the latter. A ported Berry’s, Berry shared a panel divided reversed on the First Amend Kinsey similar view of the Board’s role. ment issue. 916 F.2d 273.1 We reach a Hagler’s was concerned that would become conclusion and AFFIRM. different daily operation involved in the addition, In schools. he was concerned

I. elected, Hagler’s job if would Salado, Texas, in community. jeopardy; is a small In this one of the reasons was why campaign. concern he in Kin there was considerable about was active operation Kinsey sey any schools. had did not make financial contribu tions, committees, pursu- superintendent any served as since serve on or make did, however, annually any speeches. and He ant to a contract reviewed nu May In periodically. extended elec- merous conversations with Salado citizens positions support Berry’s three on the in which he voiced tions were held for addition, groups Hagler’s.2 In seven member school board. Two concerns about control, sought pri- part political support Berry and the concern for the board slate, Kinsey. Controversy published he had a letter in marily centered on the local surrounding begun newspaper, complimented in 1984. The in him had which he Ber fueling ry performance in included factors a new on his on the Board. (in- grading system, teacher certification Essentially, Berry’s a vote for was qualified area), cluding teaching outside Kinsey; viewed as a vote for a vote for authority and the division of between the Hagler’s, against Following as a him. vote superintendent. Board and largest one of the ever turnouts for voter elections, Hagler’s In months January a few before such won a wide elections, margin contract had been and formed a new Barrentine, two-year (through term Board Joe extended for a member who had not 1990), up only by June a vote of four to been for re-election. As a member of Board, he, elections, prior Hagler, three. like Well advance had voted cross-examination, (Kin- process It claim. 2. On did not reach the due testified that he "against Hagler had been sey only [the election.” requested slate’s] be addressed if had that it "openly against When asked how he had been judgment Amendment claim on the First it”, replied: "Anybody he that asked me what reversed.) we took this case Because was, my opinion of ... the election who was otherwise, banc, provide en did not Board, running, who I felt like should be on the panel opinion is vacated. 5th Cir.Loc.R. 41.3 my quite I voiced concerns.” He “had a num- Operating Procedure for Fed. and our Internal ber of [these] conversations” with Salado resi- R.App.P. 35. dents. factions”, political into two ed renewing against January 1988 with, supported by, ma- Hagler became associated Barrentine contract. secretary, Berry) and with minor- (including president jority new Board [Kinsey], “increasingly critical of ity respectively. community”; supporters were their the elec immediately after Simply put, elections, Kinsey had been prior to to worse. went bad tion, the situation platform and against “openly relationship between strained awas There new members of” the two election Board, it mildl put new Kinsey and to all of known [the] been “well in execu frequently meeting began It y.3 their commu- and to Lawyers were defendants Kinsey. individual about session tive July immediately af- late supporters”; sides. nity brought on both *4 buy to attempt out elections, majority “set unsuccessful the new after ter the agreed contract, to the Board his Kinsey’s in retaliation for ... out to terminate [him] of his the issue six months for opponents.” aside political set their with association January evalua the usual contract—until con- that his charged, alia: Kinsey inter interim, issued the Board For the tion. as a by Texas law recognized tract was in which the manner regarding directives and, contrary to the Four- property disagree There was perform. towas he Amendment, had been terminated teenth Kinsey’s compliance regarding ment process; and due procedural without that he majority felt Board The them. vio- rights had been Amendment his First directives; minority, that the rejected the aas had been terminated lated, he comply. efforts to made reasonable he support of and associa- his “active result of directives, the of the issuance Following opposition” to political tion with Agen- Texas Education met with Board him against retaliated majority, who had of the July 1988evaluation cy to discuss and be- position, political “because had lowered That evaluation district. candidates speaking out for his cause of including because rating, accreditation numerous Kinsey also raised his choice”. the Board relationship between poor claims, including that state law pendent and is- problem) (governance Kinsey state law. violated termination (includ- certification to teacher related sues summary granted court The district teachers). Following that misassigned claims against judgment Agency Admin- during meeting, which capaci in their individual members solve the Board Board to instructed istrator claims, except federal against sched- problem”, Board ties and “governance grant It also termi- to discuss First Amendment. special session as to the uled unopposed motion Kinsey’s contract. suspension District’s ed the School nation Board, by a vote At trial on pendent claims.5 September dismiss duties, following claim, him of three, relieved Amendment the First four case-in-chief, and benefits. District pay the School with full verdict, including be a directed moved sued, including pursu promptly Kinsey as a citizen in “interest cause complaint The 1983.4 to 42 U.S.C. § ant political of whatever exercise oppo Kinsey’s open about no doubt leaves outweighed engaged activity he [was] against, including association to, sition governmental [by] ... not later alleged that It majority. new of [the efficient fulfillment “divid- been the Board April than near- a room Kinsey’s secretary’s office shortly be- Kinsey testified example, 3.For it. regular by, meet- order to Board work post-elections fore the first [your father] "Tell ing, told him: Barrentine Tuesday night.” you going to fire not that we’re Kinsey sued indi- The members was, implication "WeTe that "the stated vidually. night, but down going do it [that] Hagler example, testified another road."' As rul- these not contest appeal, does 5. On him, capacity in his not allow would ings. policy manual secretary, remove the as Board II. responsibilities to the School District’s] added.) (Emphasis The court public.” summary limited Our review is granted the motion was ruled that judgment on the Fourteenth Amendment reconsid time, indicating that it would judgment notwithstanding the ver- and the At the close of the the verdict.6 er it after dict on the First. moved; evidence, District so the School 50(b),the district again, under Fed.R.Civ.P. A. under advisement took the motion court latter, legal is For the we address jury The returned a pending the verdict. threshold; against if we rule sues at $250,000 awarding him verdict for stop. ruling, In so do not Kinsey, we by special interroga damages. It found comport consider whether the termination he was terminated because tories that Instead, ed with state law. we focus of his First Amendment his “exercise Kin the reach of the First Amendment. rights in to the” elections. relation sey’s only speech, activities included not granted the Dis- district (a political but also association or affiliation 50(b) judgment not- trict’s Rule motion open speech speech). form of Free and verdict, ruling, part, withstanding the part mix that affiliation are *5 Kinsey’s protect- conduct that was whether But, molds and sustains this Nation. need question by Amendment was a ed the First say, Kinsey’s exercise of those less to law, required absolute, it was to resolve citizen, which rights, private as a is not Upon based on the evidence. that assess- as insofar as conflicts with his role a ment, part: public employee. protection in The accorded it held by the First Amendment to such activities in superintendent, as was a infrequently. is an issue we address relationship to the close confidential Accordingly, controlling the law is well es relationship If the between board.... it, however, In a dis applying tablished. antagonistic, the

the ... School two [is] in tinction must be made between cases operation may adversely be af- District’s volving only speech, only political associ that fected. The record is clear ation, or a combination of the two. This relationship the Board worsened af- with category. case falls the latter within election_ ter the ... recently Coughlin As discussed in disruptions The finds that such Court Lee, (5th Cir.1991), only 946 F.2d 1152 if of the undermined the effectiveness issue, speech plaintiff, inis the as a matter right Board. to law, first, must show: that it a involves political opposition to a public (“determined by matter of concern community to by the officials elected content, form, given and context of govern outweighed by the him is board’s statement, by as the whole revealed having superin- legitimate in record”); second, that, “the loyalty tendent to the new board’s with citizen, [employee], as a in comment policies and directives. ing upon concern public matters of [out added.) district court de- (Emphasis State, weigh] as the interest of the alternative mo- nied the School District’s efficiency of employer, promoting trial, ruling that if it through tion for a new was its public performs services it reversed, (quoting should stand. See employees.” verdict Con Id. at 1156-57 138, 147-48, 50(c)(1). 103 Myers, Fed.R.Civ.P. nick v. 50(b), infra, ruling, two Fed.R.Civ.P. As discussed 6. In so the court cited raised the motion.” “[wjhenev- part provided that grounds presented which in relevant in the motion were verdict made at the er a motion for a directed Kinsey's legal comments did not issues: any is denied or for close of all the evidence and, public concern as not- matter of involve a ed, granted, reason is not the court deemed to citizen, interests, private as jury subject the action to the have submitted government’s. outweighed legal questions a later determination

993 McBee, 730 (1980). 574 1287, 63 L.Ed.2d (1983) 708 1690-91, L.Ed.2d 75 1684, S.Ct. There, newly elected 1011-14. Educ., U.S. at v. Board Pickering prede- reappoint offer did not 1731, 1734-35, 20 L.Ed.2d sheriff 568, 563, sup- of whom deputies, some these cessor’s plaintiff satisfies If a (1968)). re-election (on predecessor’s causa ported jury goes issues, case political at and attendance bumper stickers 1157. Id. tion). addition, In 730 F.2d at rallies. provides hand, Coughlin other On complaining deputy’s a former upon only is the association political if depu- fellow her about county authorities retaliation, em for the reason claimed offer rehired, unaccepted being ties not (must not subject first ployee with- position her a lesser to retain issue, be legal concern public satisfy) held: 1010. The court drawn. others associate “[fjreedom cause authori- Supreme Court Surveying advancement common for the discussed, we conclude ty which protected is ... and ideals beliefs by us applied to he Id. the standard Amendments.” Fourteenth First and discharge resolving Burns, such U.S. Elrod (quoting is the Pick- cases L.Ed.2d or non-renewal 96 S.Ct. must case Each ering test. such Coughlin). (ellipses in (1976)) facts, sift- particular considered threshold at the balancing is cases, only circum- factors through in such a case when legal issue (the second outlined Connick Court stances speech): only volves be- balance proper to strike order interpret- subsequently has and associ- employee’s tween re- jurisprudence Court Supreme ed state’s rights as citizen ational discharge based evaluating a court quire *6 effi- loyal and employer right as an First to balance activity political on reason- might cases Such service. those cient by implicated values Amendment on locate themselves expected disruptive ably be possible against activities they do. that conclude we spectrum; of ser- provision governmental on effect each context of specific added). within (emphasis vices 1014 Id. at out- interests employee’s case. [If not court our spectrum, viewing that In burden weigh government’s,] [t]he discharge only involving cases ed that follows.... then proof causation Elrod affiliation, as such party political County, Hogg Jimv. (citing McBee Id. Branti, were “at the extreme and (5th Cir. 1009, 1016-17 Texas, F.2d weigh 730 little, any, if side, where employee’s banc)). for_ 1984) (en cam They did not called ing is they mere speak: court’s the district not even novo they de paign, review We issue(s). of the end other Id. legal For the thought.” the threshold ly resolution Childers, cited court 933 v. our Dodds 1156; employer’s, spectrum, E.g., id. at (5th Thomas, v. 852 F.2d Soderstrum Cir.1991); 430 (5th Ferguson 273 Texas State v. North 139-40 Isle, Duke Cir.1970), 925 and Grand Town of Cir.1972), cert. quoted (5th noted, earlier Univ., Cir.1991). As 2760, 37 complaint, denied, 412 U.S. S.Ct. from allegations had trial, doubt instructors no (1973), leave “where proof L.Ed.2d well suf political that and disturbances involves student case incited this abili question un- squarely in such, falls to call it ficiently As serious association. in to maintain in 1984 authorities decision academic en banc ty court’s der doing, it so Id. In campus.” order McBee. Judge Ferguson, written quoted Supreme forged McBee Charles Clark: Judge) (now Chief Pickering speech decisions pure Court’s court district proof before Here political (1983) its and Connick (1968) exercised Ferguson Dr. showed (1976) and Elrod decisions affiliation to such association rights 507, 100 S.Ct. Finkel, Branti significantly seriously impair, disrupt opera- if not to the continued extent as an Id. office.” tion of the as an instruc- destroy, his effectiveness organized program of academic in an tor McBee fell mid-spectrum. Such his choice to make. tutoring. This was In determining the case here. is not where to control his right no college fall, should this case order to formulate asso- speech or to curtail freedom of proper apply balancing, we note ciation, right have a they did involving public employees that cases employment as a classroom terminate his occupy policymaker posi confidential point the exercise at the where instructor much closer to the employer’s tions fall end privileges clearly constitutional government’s where spectrum, in- his usefulness as an over-balanced easily outweigh employ more structor. citizen). Rutan v. (as private ee’s — McBee, Illinois, added) Republican Party (emphasis F.2d at 1014 U.S. -, Ferguson, (quoting (1990), 430 F.2d at 110 S.Ct. L.Ed.2d 52 Branti, extension of Elrod Su- upon the facts in the court Based “promotion, preme Court held that trans situation”, calling “mid-spectrum found a fer, recall, hiring involving decisions Pickering balancing, as refined employees public low-level be [could not] Accordingly, Connick. Id. at 1015-16. constitutionally party based on affiliation the district court to provided guidelines for — at -, support.” U.S. 110 S.Ct. hand, apply on remand. the one “On government’s “A at 2732. It further held: degree what court should consider to securing employees who will ‘public involve [speech ... and association] loyally implement policies can ade other, the court should concerns.’ On the quately by choosing dismissing served working ‘close relation consider whether high-level employees certain on the basis of fulfilling ships are essential [the — ” at -, their views.” U.S. responsibilities.’ employee’s] public Branti). Elrod (citing S.Ct. at 2737 Connick, 461 U.S. at 151- (quoting at 1016 Elrod, holding, In so it noted that “[i]n 1692).7 The McBee 52, 103 ” suggested policymaking and confiden ‘closeness’ con “caution[ed] [this] employees probably tial could be dismissed persons cerned more than the number of *7 political In on the basis of their views.... but, involved, importantly, was “a more Branti, said that a we State demonstrates responsi particular ‘public function of compelling infringing in a First carried out.” Id. bility’ being If the dis rights only Amendment when it can show for such rela trict court found it essential ‘party appropriate affiliation is an re close, tionships “it must then deter to be quirement performance for the effective of particular mine whether [and ” — public office involved.’ at U.S. disrupted sufficiently other conduct] -, 5; n. 110 S.Ct. at 2735 n. 5. working prevent relationship as requiring stronger a show recognition policymak- This court’s performance, disruption employees’ ing employees’ as or confidential First Amend of ‘public speech moves to core con rights easily outweighed ment are more in closer ” Connick, See, Id. at 1017 McBee. (quoting balancing predates cerns.’ Benavides, 1693) 142, e.g., Gonzalez (empha 103 712 F.2d 461 U.S. at S.Ct. Cir.1983); Stegmaier added). (5th Tram assessing disruptive In such 148 sis time, mell, 1027, 1038-40 (5th Cir.1979). effect, court should consider “the political activity” example, recognized again, For this was place and manner of the context, (1991). Soderstrum “whether, particu recently, in taken in The chief police employed activity nephew’s considered sufficient of his wife lar should be insubordinate, later, hostile, secretary. years upon ly or as to as his Several abusive working employer's judgment appropriate." is held close rela- 7. Connick that ‘‘[w]hen fulfilling public 151-52, added). tionships re- (emphasis are essential to 103 S.Ct. at 1692 sponsibilities, degree a wide to the of deference

995 if infor employee, than rather as her. rehire did not defeat, new chief his is of ‘relevance to conveyed claiming that mation under § sued She of performance affil- political of public’s her evaluation upon was based decision ” F.2d at and violated 946 agencies.’ chief former governmental iation of right Indep. to freedom Park (quoting Day v. South First-Amendment 1157 “her Cir.1985), stat- at 137. Id. 700 Dist., 768 F.2d association.” then, ques- reduces, 1101, 106 denied, “The case ed: U.S. rt. ce 883, in a secretary] served (footnote tion whether (1986) [the omit L.Ed.2d complete requiring of position confidence Notwithstanding Kinsey’s interest ted)). 140. Id. at chief.” police loyalty his superintendent, retaining position his should government official incoming An involved matters and association secretary personal his to choose be able performance great public concern—the First prevented not be should activ say, Needless officials. elected defeated replacing Amendment expressed views he ities, especially relative, at secretary and opponent’s resi with Salado conversations numerous case, in this person, as when least evaluating the relevant dents, most her expressed lack unambiguously has the Board. performance of incoming official confidence close is whether a Another consideration in the new unwillingness to work her essential. relationship is working find Because administration.... position. policymaker high-level occupied the definition secretary] fits that [the corporate law, Board is a Texas Under ad- we need not employee, a confidential manage power exclusive body correctly deemed she was whether dress schools. Y.T.C.A. its district’s govern as well. policymaker (1987). employs It 23.26 Code Education § omitted). This confi (citations Id. at 28.28, “is the superintendent, id. § based, among finding was dential the administrative leader educational secretary the fact that things, on other 13.- Id. school district.” § manager files confidential to certain privy “was 13.352(d) compare id. 351(a) (Supp.1991); § earli quoted at 140. As documents.” op- principal for (detailed responsibilities con must be er, “case[s] these each superin- statement general posed facts”. particular on its sidered F.2d at tendent). Stegmaier, See Although Rutan identified, in may be (policymakers combination not involve do Soderstrum responsi- whose employees “as part, association, they are speech and simple ministerial than require more bilities McBee-guided our instructive discretion whose ... and competence, here.8 severely limit- ... performing duties factors, con- one the McBee applying policy determi- statute, regulation, ed to which the extent sideration *8 supervisors”). by “[Consid- made nations public con- of matters involved activities given whether to be should also eration only involving case not a This is cern. formulates or adviser an employee acts of the first concern public where speech, of broad implementation for the plans notwithstanding, legal issues. two (quot- at 149 Gonzalez, goals.” whether determine applied tests 96 S.Ct. Elrod, U.S. instructive. are concern is of such speech was primary duties Kinsey’s 2687). ofOne rise to Coughlin, “[i]ssues As stated init He met Board. advise if an individual public concern level and opinions offered and session executive a citizen in his role primarily speaks media) a matter not address did tion to the political asso- speech and Coughlin involve 8. We affirmed public election; concern. plaintiffs, to an related ciation claim, but verdict sheriffs, occupy policy- the directed did not deputy former as- association on the remanded and reversed close of positions. At the or confidential maker ad- did not verdict the directed pect, because granted the case, was verdict a directed their been discovery it had proper it and dress that the basis on the sheriff defendant 1158-60. Id. at damaging denied. informa- providing (surreptitiously 99 guide sey’s great its decisions. activities touched on matters

recommendations concern; but, public handled the School District’s position also because his finances, and made recommendations to the high-level confidential, was so hiring principals. teachers and Board on opposition much to the new was And, only by can the Board act required disrupt, prevent, in order to duly meetings, called majority vote at performance. effective dependent upon its chief ad- determining disruption, In one factor we ministrator, implement policies consider, by as instructed is the Stegmaier, decisions. 597 F.2d at 1035 See “time, place and manner of the (policymaker also identified as activity”. po- association and implement poli- whose decisions create sition the elections was well known. He cy). admitted, As he was the issue. he ex- Therefore, possessed power he to pressed Hagler his concerns about the slate policies “make or break” Board which “ar him; anyone asked and he did so on guably opportunity him the afforded published numerous occasions. His letter goals”. thwart or to forward Gonza [its] newspaper to the was for purpose lez, occupy 712 F.2d at 149. In addition to demonstrating support his for Berry. Ad- ing sensitive, policymaking high-level po mittedly, considering the last of the McBee Board, Kinsey sition in occu relation factors, disruption his conduct was neither pied relationship. a confidential See So “hostile, abusive insubordinate as to [so] derstrum, 140-41; Stegmaier, 925 F.2d at disrupt significantly opera- the continued (deputy 597 F.2d at 1040 circuit clerk held office”, id.; but, tion of the there can be no employee). During confidential executive activities, that as a result of doubt he sessions, he could called on to advise the could not relationship relating property Board on matters to real relationship with the Board. His with Bar- transactions, personnel grievances and Hagler rentine and had been adverse to cases, hearings, discipline student oth begin developed with. This had inwell er confidential matters. Vernon’s elections, op- advance of the in which he 6252-17, 2(f), (g), Ann.Texas Civ.St. art. § posed Hagler’s Accordingly, re-election. (h), (m), (r) Moreover, (j), (Supp.1991). rights “First Amendment [do not] he was custodian of the Board’s confiden outweigh the interest in the ef- [Board’s] 5(a) tial records. (Supp. Id. art. 6252-17a § provision fective services.” personnel These include could Coughlin, 946 F.2d at 1157. bids, litigation files, sealed drafts and working papers preparation pro short, high-level In light policy- posed policies, rules and student records position, Kinsey maker and confidential and other confidential documents. Id. art. stepped the line. As observed in Fer- over 3(a)(2), (3), (4), (5), (11), (14), 6252-17a § guson, was his choice to make.” “[t]his (17), (22)(information deemed confiden But, doing, in so F.2d at 859. he Act). Open tial Texas Records provided any shelter otherwise abandoned him First Amendment. Because sum, working relationship a close balancing, Kinsey fails the McBee this case (in was essential. concedes this jury. have been submitted to the should not brief): relationship en banc “the between *9 Therefore, correctly the district court the board a of trustees of school district granted judgment notwithstanding the ver- is, superintendent and its of necessity, a dict. close Accordingly, one.” we turn to wheth “sufficiently disrupted er his activities working relationship prevent as to [close] B. performance”. 730 F.2d end, guided Contrary summary judgment,

at 1017. are Toward that we falling very proce this case close to the maintains that he em was denied ployer’s spectrum. process end of Kin- the McBee dural due under the Fourteenth

997 of First Amendment exercise dep taliation establish first must He Amendment.9 rights. court held: constitutionally protected aof rivation process Bd. Educ. inquire what was Cleveland interest. need property [W]e of 538, 532, process 105 S.Ct. afford- Loudermill, U.S. due or whether 470 v. (1985). Other from prior to his termination 1491, 494 ed Davis 1487, 84 L.Ed.2d undisputed process is is employment, because “what wise, not consider dowe Hairston, salary full under v. that Davis received English Id. Accord due”. Cir.1989); We have (5th employment Darlak contract. 1069, 1070 no com- (5th employee suffers 1055, Cir. an 1061 found that Bobear, F.2d 814 v. early employ- damage an from September pensable 1987). Although relieved paid he been where has ment termination compensation 1988, Kinsey full received year. the contract salary for his full of com Because June 1990. through Kin held that court the district pensation, requisite support in the case deprived of find no law sey not been We also had however, he contends, that he entitled claim for Davis’s He interest. employ- responsibilities non- property interest duties a

possesses contract. respon specified under ment as duties benefit economic gents sibilities abstract a it. He have more position claim created erty interests from an law.’ the Texas Education which Dallas existing rules or 754 n. 973 n. court held Kinsey is unable ment property noneconomic ‘specifically terest when residency of a signment—a Mississippi Dental person “To have Davis Roth, ” constitutionally generally 2709, of entitlement v. bestows a Indep. School Soderstrum, must, and their claimed Roth, 408 U.S. as independent need protection clearly must have in Davis program than (5th a 33 L.Ed.2d superintendent. creates superintendent. property property interest benefit —such in continued he was Cir.1986)), or desire for instead, does a unilateral Cir.1989) understandings that property School, allegedly in re- dimensions for such not create Code, or other to it.” protected cite he property source Mann, 882 F.2d interest Dist., dismissed 564, “unless any provision 92 S.Ct. (quoting Jett employment (1972). interest as a work expectation more than been University of Board such as it. 577, benefits.’ And, at 138 in a property due defined legitimate He deprived 92 benefit, employ- process source, “Prop- in the (quot- must state stem state ‘are in a Re- ” as- in- of nomic See interest F.2d compensated ry 753-54 had been did (superintendent efit protected under Accordingly, join Judge, with concur same conclusions For the AFFIRMED. Circuit PATRICK I write for the contract at not have due W. specially [*] he did also Cannon 64, benefit 973 [plaintiff’s] (contract did not district Dist., in the EUGENE 67 Judges KING property paid foregoing separately (citing Robinson v. existing [*] not receive when whom (5th E. concurring: intangible, noneconomic judgment. not have terminated “the HIGGINBOTHAM, Circuit do not serving process [*] as the Cir.1987) (plaintiff F.2d he received his assignment as DAVIS, Circuit year); interest contract”). III. POLITZ, GARWOOD reasons, full amount v. Beckville reach his 9, [*] “create a due plurality, but claim, Jett, without constitutionally superintendent. in the non-eco- process. (5th Cir.1983) WIENER, [*] I 798 Boyer, 825 because contention reach the judgment full coach”)). property due him hearing Judges, F.2d Indep. [*] fully sala- ben- by a he at *10 (5th Corp., novo, Dynamics eral summary judgment de us- review a We Worth Bank-Fort Cir.1991); Commerce Texas court. district as the ing standards same Cir.1990). (5th States, 56; see, United v. Gen- e.g., Crenshaw See Fed.R.Civ.P. If, inquiry. poses different plurali tasks. This a parallel to the path, both different example, public policy officials were by it.1 for not foreclosed ty’s approach issues, we would speak public District out about the Salado School Trustees balancing inquiry of of their Con- proceed mandate elec on the could deliver Kinsey. explained in through Superintendent As we Gonzalez: nick. only tion superintendent a They were entitled having interest in government If [the philosophy. management This shared their impli- is policymaking employees] loyal contrary, not. To the superintendent weigh should then cated the trial court newly elected board held Kinsey and the against rights the asserted that interest on their re diametrically opposed views weighing is re- speech. free That Certainly, management. in spective roles not decide that all quired because dowe obligated super hire a the board not relationships is by persons in such philoso did not share their intendent who Rather, must be unprotected. amendment does not the first phy, against impact upon the weighed rela- superintend such a require them retain relationship’s role tionship and that ent. discharge of his the elected official’s duties. of state interest over first trumping expressed judi- in a is Id. at 150. amendment poli- a Such policymaker. cial creature —a however, When, policymaker is a fired job tenure under cymaker cannot secure mission, his related to views by publicly espousing the first amendment weighing, no whether there is further engaging byor antagonizing philosophy publicly es- not these views have been activity in its service. in other sense, practical the balances poused. a Doubtless, enjoy pro- activity will such categoriza- already have been struck many amendment tection of first policymaker. a See tion of a worker as security. job no contain purposes, but will (D.C.Cir.1988); Ford, F.2d 255 Hall v. explained: have As we Isle, v. Town Grand Soderstrum governmental interest se- There is a Cir.1991). Categorization F.2d 135 relationships unique be- curing those to first versus familiar amend- is executives high level tween certain Although they both jurisprudence. ment grace they at whose the elected officials values, accommodating competing require of relation- narrow band serve. For this categor- policymaker they differ that the First refusing grant Amend- ships, cases, across ization strikes balance away seem to take tenure would ment balancing is whereas Connick already accept- lost freedom not little also shifts the Categorization case to case. itself, at least appointment when process to defini- case case decisional sweep appointive job has au- premium on puts tion. It a definition. The central to thority be and discretion procruste- Supreme softened the Court has duty. The holder of the elected official’s requiring state to an demon- bite hardly any position can rea- such a only “policy- was a strate that worker policy expectation but that sonable position, maker” or held a “confidential” publicly pro- fall must within choices conformity job also whether of view is appointing by his license issued tective put As Stevens it: related. Justice job that loss of that is say To officer. inquiry The ultimate not whether the public declaration chills price for his “policymaker” label or “confidential” fits little. rather, ques- particular position; I, at 148. Gonzalez hiring authority can tion is whether party affiliation demonstrate that course, policy may official public Of the effective appropriate requirement for protected amendment fired for first office performance in- to his mission unless that activity unrelated volved. performance of his activity would frustrate property plurality’s fully treatment issues. concur

1. I *11 rather than of authoritarianism 100 curriculum Finkel, 445 U.S. Branti than (1979). suppression speech, rather autonomy, 63 L.Ed.2d S.Ct. public dis- than public facade rather problems of none has case I not the Constitution course. do believe job of related- margin nor the defining at I cramped plan. lesson prescribes so respective roles Kinsey’s vision ness. I confine this dissent- respectfully dissent. need be swallowed and trustees board opinion consideration heart of the to a succinct go the They to board. by the that a plain overarching posited plural- is issues the way, it the another Stated job. respective roles the opinion of their of the en banc court and ity common vision for the effec- requirement appropriate has said Much been special “an concurrence. in- public office performance I the repeated. tive stand not be that need This, 518,100 volved,” id. analysis of of law and propositions case. me decides this majority opin- panel in the facts articulated pre- ion, repeat nor redact that neither Judge, whom GOLDBERG, Circuit writing. vious Judge, joins WILLIAMS, Circuit S. JERRE dissenting: I. willing [person] who I honor the And Dist., Indep. School Kinsey v. Salado sink (1990), panel for the freedom repute present Half public employee this circuit’s applied think, jurisprudence, as affiliation thought, be his cause And, he has when I today. Although plurality does en banc weak, strong or as the en grading scale same utilize the the freedom other half for risk t’ Will give ultimately Kinsey I plurality, banc speak.1 plurality, The class. grade highest and, again, sound to the school however, top honors

I revisit Salado awards protected assigned freedoms about the quarrel schoolbell board. We plurality rele- The First Amendment. test task, the correct but about leader district’s “educational gates a school by the Constitution. answer dictated al- manager” to an administrative and ... designat- on the our discourse I note that role. Tex.Educ.Code unspeakable most certain similarities. contains subject ed 13.351(a) (Vernon The constitu- § mat- certainly “involved Kinsey’s activities is that today’s evil of decision tional Plurality op. public concern.” great ters aof strips superintendent summarily (Kin- F.2d at 278 995; Kinsey, 916 see right partic- citizenship badge of —the public elec- concerned sey’s statements jury The in an election. publicly ipate board, became which school tion board would school the Salado found Sala- public importance” in great issue “of superintendent discharged the not have omitted). “a su- Since school do) (citation during the elec- expression for his stand school board perintendent [the] Kinsey by punishes plurality The tion. relationship,” a and confidential in a close corner like to stand forcing him relationship between working close while silently observe schoolchild small ful- essential to board was the school .and colleagues de- friends and neighbors, responsibilities board’s filling school and candidates issues election bate 280; F.2d at Kinsey, 916 public. cf. pages amongst themselves (concluding 995-96 op. at Plurality newspaper. town policymaker high-level “occupied is unmis- teaches this decision lesson relationship”). and “a confidential position” school board By permitting takable. en administered The examination speech which superintendent’s censor re- several crucial differs in plurality banc and measured in reasoned he delivered panel proctored spects from a constitutional terms, enforces the court Lowell, (1848). Fable for Critics A Russell 1. James

1000 the of the school board’s duties to empha- fillment plurality The en banc majority. public. Kinsey, 916 F.2d at 280.2 First recognize, that the sizes, I a “confidential em- rights of Amendment us to consider two McBee instructs outweighed” by easily more are ployee ... suffi determining whether the factors government than the the the interests disruption occurred cient level of rights of a wow-confiden- Amendment First of this case. Neither of particular context employee. Plural- wow-policymaking decisively tips the balance to tial factors the omitted). (citations From begin, as government, even if we ity op. at 994-95 the ward however, does, overly plurality the a test plurality with proposition, this employer’s end of the vulnerably weighted that toward test crafts a “time, place and manner spectrum. The employer’s end of the toward slants activity” weighs in “Kinsey’s activities touched spectrum. County, 730 Hogg favor. McBee v. Jim but, concern; be- great public matters Cir.1984) banc). (5th (en 1009, 1017 high-level so position was cause other citizens merely He conversed with confidential, opposition not much elec concerning upcoming school board required order to plurality new Berry expressed support tions and perform- disrupt, prevent, newspaper. published in the local in a letter added). A (emphasis 996 Id. at ance.” analysis 278. In its Kinsey, 916 F.2d at is doomed to fail a confidential moreover, factor, plurality the second heavily as that devised weighted as test could particular that the activities admits plurality. “ ‘hostile, sufficiently not be considered panel majori- point where the This is the disrupt insubordinate abusive or [so] divurges from of the exam ty’s preparation operation continued significantly the agree I that plurality. of the en banc (quoting Plurality op. at 996 office.’” particu- query is “whether the correct Despite this 730 F.2d at sufficiently speech other lar conduct] [and it should shift the explicit indication that working relationship as to disrupted plu employee, the back toward the balance performance” of prevent effective be no rality concludes that “there can public. responsibilities [Kinsey’s] activi school board's doubt that as a result of omitted). (citations ties, relation he could not have an effective Plurality op. at 994 (emphasis add ship the Board.” Id. seemingly dis- quotes, but The court ed); Carpenter, see Thomas language deem critical to regards, Cir.1989) 828, (9th (“disruption must be employ- balancing analysis: “[A]s omitted), ”) (citation ‘real, imagined’ not [and] ‘public closer to core speech moves ee's] “ ” denied, 1028, 110 S.Ct. 494 U.S. rt. ‘stronger concerns,’ requires ce the law ” (1990). record, 1475, 108 L.Ed.2d govern- showing disruption’ however, precisely opposite demands during “Kinsey’s speech ment. deduction. at the heart of election was school board protection,” so the school prove First Amendment Board failed to “[T]he prove adversely heavy burden af Kinsey’s public district bore statements disrupted working working relationship with the fected his Kinsey’s activities so 3 Kinsey, 916 F.2d at 280. the efficient ful- School Board.” relationship prevent toas Benavides, loyalty require job security expense at the 774 F.2d 2. Gonzalez Cf. (5th Cir.1985) “directly (protecting speech] unprotected”). unfettered concern" be of substantial matters address[ed] significantly harm rela cause deny relationship between I do not that the officials, although publicly tionship public employee elected Kinsey dur- and the school board deteriorated sensitive, occupied high-level subse- and the the school board election denied, 106 S.Ct. position), cert. duties as quent decision to relieve (1986); v. Bena 90 L.Ed.2d 335 Gonzalez superintendent. not link the does The record Cir.1983) vides, (weighing speech. disruption affiliation all required did "not decide that because court & n. 7. 916 F.2d at 280 relationships speech by persons [which in such (“ ‘First Amendment Id. at dence. school publicly disavowed never by mechanical answerable merely ex- ... him, issues authority over board’s omitted). ”) (citations form a rea- formulae’ and written in verbal pressed *13 can- school board for one preference soned II. Kinsey per- Nor over another. didate board new school any of the sonally attack a test advocates concurrence special The supports record Nothing in the candidates. by blind highest score not the that bestows insubor- in an that acted the notion bright- This by favoritism. grading, but school board. the manner toward dinate “party employee’s if the first asks line test election, Kinsey pub- the of aftermath the requirement appropriate is an affiliation board. school support the to licly pledged the of performance effective for the board is- school newly-elected the When involved,” if the answer and, office attempted directives, Kinsey specific sued step employee to over that forces “yes,” Nothing directive. comply with each to public employees category of into a the line any with noncompliance shows the record related solely “views dischargeable Gonzalez, F.2d directives. Cf. or not mission”—whether employee’s exchanges, lack polite that (holding at 1303 expresses those views. employee cooperate attacks, offers to and personal of pure affiliation taken in the approach is the did not that showed employer with flowing expression cases, a nod to but govern- disrupt the likely not and the affiliation. that Kinsey testified operations). ment’s recog this ago, Court years ten Almost him that informed never board the school politi need for government’s nized carrying wrong in anything done he had employees, high-level of certain loyalty cal superintendent. duties out his Cf. effectiveness, but just not ensure (“no that evidence McBee, at 730 F.2d “implemen the obstruction prevent actually in- activity previous their administration, new policies tation performance with the terfered by the sanctioned presumably policies jobs”). their (cit Gonzalez, 712 F.2d electorate.” test that posits a plurality The 347, 96 S.Ct. Burns, 427 U.S. Elrod wholly re- plurality pass. could never Yet we (1976)). 2687, L.Ed.2d 547 in the weighs factor that the one lies on holding balancing approach, to the adhered right of the favor, board’s school governmental important merely that efficient loyal and employer government in the weighed be should oth- disregards the service, essentially I not read 148, 150. do process. speech and support that er factors mandate bal limiting the Gonzalez rights. associational to cases interests competing these ance expressions [cannot] The character “un views voice involving employees not has re- Constitution ignored: rather, mission”; the bal to their related thing nature; it is one human pealed in on whether ancing focuses has ex- subordinate awith to work concern,” terma “public matters volved for anoth- preference a reasoned pressed related both views might include to have another quite superior er mis employee’s particular unrelated individu- organization on one’s forced sion. honesty one’s blackguarded has al who county. teach McBee up and down ability Gonzalez speech and employee’s weigh the should formu- The test McBee, at 1017. 730 F.2d impact against associational high plurality ascertains by the lated relationship between on the a assigning balancing, but scorer relation- and the officials the elected na- perceived grade predetermined discharge officials’ elected in the ship’s role em- relationship between ture of 1016; duties. of their officials. elected publicly ployee and panel ma- at 150. The Gonzalez, to the bal- unfaithful test seems Such at 280. Kinsey, 916 so. jority did jurispru- by our prescribed ancing approach 1Q02 semester, beginning of short re- related to his

Yes, Kinsey’s were views resolute yearn I for the return to But the views cess. mission.” [educational] I concern.” And curriculum that will disavow “great public constitutional that Kin- the record shows of Dr. First Amend- emphasize today’s denial catalyze any dissen- sey’s activity did teach Salado’s children of rights and ment relationship the school promised in his tion freedoms the First precious panel precisely why the That board. Amendment. analysis, could not final majority, to his ... access “den[y] electorate *14 Id.

unique point of view.” approach endorsed categorical by the fear is fueled

special concurrence provided by our balancing test high-level em-

jurisprudence will allow first job tenure under the ployee “secure VASSEUR, Plaintiff-Appellee, espousing his anta- by publicly Moise amendment in oth- by engaging gonizing philosophy or Special in its service.” political activity er CO., and Halliburton HALLIBURTON Cone, major- panel noted at 998. As Plan, Medical Co. Retirees however, requires the fact-finder ity, Defendants-Appellants. employer would determine whether re- employee suspended or fired have 90-4861. No. speech.” protected gardless Appeals, United States Court Healthy 9, citing Mt. 281 n. 916 F.2d at Fifth Circuit. Doyle, Educ. v. [City Dist. Bd. L.Ed.2d 471 3, 1992. Jan. added). (1977) Elected officials (emphasis ] engaging in confronted with by the First Amend- protected activities employee for an

ment can terminate is not valid reason —but

otherwise sup- The record happened Salado.

what that the school board

ports the conclusion Kinsey but for

would not terminated political affil- public expression

iation.

III. in an election things as desirable

Few are people are Few open

as free and debate. on matters

likely to be as well-informed compo- policy and school board

educational superintendent. Yet school

sition as a deny pub- ruling is to today’s

effect of opinions of its right to hear the

lic its con- issues. No

superintendent on these functioning of the

cern for the efficient every drop requires district

school its educational squeezed from

dissent be

leaders. close, to a has drawn

The school term hope I to Salado.

and I must bid farewell end of a not the this course marks