*4 standpoint, administrative KRUPANSKY, Circuit Judge, concur- English priorities educating has children ring. English required because four credits are graduate school, appel- agree from and that I' Reichert Ludlow and the (LEA) lant was not certified to teach Education Association failed to es- appears depri- of First Amendment It the district court was tablish a claim that “a federal court could concerned action to the initial vation with brought challenge every” each and teaching assign- Reichert’s schedule and F.Supp. school board decision. 511 because the decision ment. prompted and this concern it to add a new entirely on court did not rest district the Mt. requirement Healthy criteria. and, issue since the district proper concluded “that test to be em- opinion, factually erred both and in my is whether the ployed pattern action write legal analysis, compelled its I am regard government actions taken with to a separately. would, viewed, objectively be like- emphasize I would that Reic- Initially, chill constitutionally the exercise of legitimate advocacy positions hert’s protected speech comparable of others in a of the LEA was Amend- (footnotes fashion.” at 686 Educa- activity. e.g. See Columbus omitted). Thereupon, the district court tion Association v. Columbus concluded that there was no “satisfactory (6th Cir.1980). Com- proof” that the defendants’ actions “would Evans, pare Anderson v. chilling result in a effect on free Cir.1981) (interest of board in main- among system,” teachers in the school taining regularly an efficient and function- accordingly no constitutional violation had in- ing system outweighed teacher’s occurred. slurs). making terest racial Defendants analyzing disposition, the lower court’s *5 seriously proposition.
do not
contest
preliminarily
although
it is
observed
Mt.
a
Healthy addressed
situation where a
Judge Phillips’ opinion clearly
As
school board
to renew a teacher’s
refused
illustrates,
concisely
irrefutably
contract,
it
is “now established that
reassign
discloses that the initial decision to
principles
when
apply
same
retaliation
teaching responsibilities
Reichert’s
was not
place
employ
takes
in the form of altered
the result of her First Amendment activi-
ment conditions rather than termination.”
Accordingly,
possessed
no consti-
ties.
1055,
Rogers,
Allaire v.
658 F.2d
1058 n. 2
respect
claim with
to that action.
tutional
928,
(5th Cir.1981)
456
cert. denied
U.S.
102
however,
court
to
proceeded,
The district
1975,
(1982), rehearing
S.Ct.
1173 (7th Cir.1979) (transfer); v. 774 Bernasconi to an is in direct response taken 3, Tempe employee’s No. to the of free Elementary speech, District exercise Cir.), denied, F.2d (9th message subtly 548 857 cert. 434 unmistakable telegraphed is 72, to employee warning open U.S. L.Ed.2d 82 commu- States, (transfer). 621 nication his views result in Delong punish- Cf. v. United will Cir.1980) government. (transfer by F.2d 618 reas The warning or a signment regardless constitutes violation political because of ac wheth- affiliation tionable, er it is heeded. where tantamount to dis only missal). Supreme Court remarked in the context invalidating aspects certain relied,
In a the case at the district bar patronage system on First Amendment part, on the Seventh grounds: Education, Circuit v. Board of McGill supra. Rights teacher are infringed govern- McGill a was transferred where the person from one school another loss of ment fines a penny to without for being a pay, seniority rights. Rejecting Republican or and where it withholds the grant of a penny defendants’ contention that such a for the same reason. actionable, transfer was not the Seventh Burns, Elrod 360 n. held Circuit test is whether “[t]he 2683 n. 547 (1976) L.Ed.2d adverse action by taken the defendants is (plurality opinion). The loss of the penny likely chill the exercise constitutional- may not induce a person forego his Id. at speech.” 780.3 right belong political party, but a constitutional violation has nonethe- With due Circuit Seventh less occurred. action, trial in this I believe judge test by enunciated Circuit Seventh Furthermore, the district court’s test ap- cases, inapplicable such within as the pears to indicate that in event a plain- cause, alleged governmental re- involving tiff could demonstrate that the exercise of employee’s taliation for an of free exercise was, his or her First Amendment speech. Rather, Supreme stat- Court fact, action, restrained the government’s *6 ed in Mt. v. Healthy School District plaintiff could not recover unless the 574-75, Doyle, supra, 97 at S.Ct. at government’s likely, action “would be as a an “establish a claim ... if may matter, practical chill exercise of of his ... was reason First Amendment of co-workers.” constitutionally protected exercise of F.Supp. added). (emphasis 511 at 687 Im- Nothing freedoms.” more plicitly, lower court’s standard could need be shown. permit government suppress long voices of timid and the meek so as Certainly, underlying of Mt. rationale its actions would not silence “reasonable District v. Surely, the man.” First Amendment is not if the government permitted so limited. deny employment person because his then, Rights, exercise of First Amendment I with the lower court’s con- sympathize ultimately “his exercise of those freedoms regarding cern the intrusion of federal in and penalized would effect be inhibited.” courts day-to-day into evolution of deci- Sinderman, 593, 598, v. 408 92 Perry U.S. agencies. sions of state and local 2694, 2698, (1972). It government however is free to make deci- however, follow, that actual inhibi- any does sions for number of reasons or no rea- must are long of free be demonstrat- son at all as as those decisions expression tion viola- infringes person’s] in order to a constitutional a basis that support ed “on [a espe- constitutionally protected action Any government tion. time adverse interests — “objective” “subjective acknowledged proof rather than its test The district court 3. than the 511 at 686 n. would be even stricter Seventh Cir- chill”. require cuit’s because the district court would 1174 finding that Perry improper motive arose subse- speech.” interest in free
dally, his Sindermann, at supra, 408 U.S. to the initial decision on the schedule quent teaching assignment changes, at 2698. the facts and weighty contrary. evidence reasons, foregoing district For the effect” employing “chilling court erred in greater significance, Of district the instant matter. test in finding, court’s as it relates to the school reassign board’s refusal to Reichert to her ante, the defend- indicated, responsibilities teaching assign- former challenging cross-appealed have ants essence, ment in Confronting psychology, simply rep- in finding of fact. lower court’s case, appears perception it that the resents the district court’s aspect gratuitious- reads as follows: what the finding in issue defendants could crucial longtime employ- done to accommodate a that the intent of court does find [T]he ee. there is no evidence that changing in not the administration [Reic- objected longtime employees when she let them other who back hert’s schedule] her, teaching assignments changes meant to and how and schedule know how much it was, considering that she had in arranging personally were successful upset seniority, because years assignments. more desirable somebody comes controversy. When fact, nothing supports teachers, best who has your who is one the lower court’s conclusion that Reichert’s “I says, awfully am years seniority schedule was not reinstated “because” of change,” this schedule ordi- upset about her First Amendment The de- activity. try something to do narily you fendants, most, may have considered this them. The court finds that the reason activity refusing request her for reas- do for her when they did not signment previous to her schedule and upset know how she was was she let them duties, the evidence conclu- she had been a thorn their side because sively demonstrates that “would have meetings. at these reached same decision . . . even in the 337). (App. absence of the conduct.” Mt. emphasized again should Healthy City School District Board of Edu- articulates, Judge Phillips’ opinion Doyle, supra, cation v. resulted Reichert’s initial S.Ct. at policy decisions en- from evaluations I am thus constrained to conclude that tirely independent protected activity. finding the lower court’s that Reichert’s teaching assignment Her schedule and teaching assignments schedule and were but one of several not reinstated because of her exercise of initiated, budgetary because of part, *7 Hence, free erroneous. Furthermore, Reichert’s straints. fact, support, has failed to as a matter of a teaching changes replacing involved a constitutional violation. psychology, a sub- teaching assignment teach, I concur in ject Accordingly, she was not certified to with a affirmance English, subject teaching assignment judgment defendants.
which she was certified.
Thus, with respect the evidence assignment
initial schedule establishes that only motive, but, moreover,
free improper teaching assignment the schedule and prompted by legitimate
cerns over the adherence to budget and
proper practices proce- certification preclude
dures. While these facts do not