Rankin v. Independent School District No. I-3

876 F.2d 838

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 2, 1989
• Docket: No. 87-1751
• Status: Published

Opinions

SEYMOUR, Circuit Judge.

Johnny Lee Rankin brought this action under 42 U.S.C. § 1983 (1982) against Independent School District Number 1-3, the District Superintendent, and members of the District school board. Rankin, a tenured teacher employed by the District, alleged that the nonrenewal of his teaching contract violated his First and Fourteenth Amendment rights by punishing him for the exercise of his right to free speech, and by depriving him of his liberty and property interests without due process. The district court granted defendants’ motion for summary judgment on the due process claims, concluding that the Oklahoma statute requiring tenured teachers to pay half the cost of a due process hearing is constitutional and that Rankin waived his right to due process by failing to proceed under the statute. After Rankin presented his First Amendment case to the jury, the court granted defendants’ motion for a directed verdict, concluding that Rankin had failed to produce any evidence of protected speech. On appeal, Rankin argues that he was denied due process (1) because the state statute imposes an impermissible burden on the due process rights of nonre-newed tenured teachers, and (2) because he was not provided a hearing before the state published stigmatizing reasons for his discharge. He also argues that (3) he presented sufficient evidence of protected speech to withstand a motion for directed verdict. We find merit in two of these contentions and reverse.

I.

DUE PROCESS

Rankin’s right to due process protection in connection with his property and liberty interests is undisputed. As a tenured teacher, he had a constitutionally protected entitlement to his employment. Defendants concede that his nonrenewal on a charge of immorality¹ implicated his liberty interest as well. We address his two due process contentions in turn.²

A.

Rankin first argues that he did not waive his right to a due process hearing because the state unconstitutionally burdens that right. Under Oklahoma law, a tenured teacher who is not reemployed is entitled to have a hearing conducted by a hearing panel. See Okla.Stat., tit. 70 § 6-103.4 (1981). The three-member panel consists of a hearing judge selected jointly by the tenured teacher and the school board from a list of state-designated attorneys, id. § 6-103.5, plus one person selected by the teacher and one selected by the board, id. § 6-103.6 C. Both the teacher and the board have the right to have an official transcript of the hearing made. Id. § 6-103.7.6. The statute provides compensation for the hearing panel, and further states: “The local board of education and the tenured teacher shall each be responsible for fifty percent (50%) of the expenses and cost of the hearing and the official transcript, excluding attorney’s fees of the parties involved.” Id. § 6-103.10 B (emphasis added). The record contains evidence that, in addition to the cost of the transcript, the cost of the hearing includes up to $250 per day compensation for the hearing judge, $50 per day for each of the other panel members, and numerous miscellaneous per diem expenses. See rec., vol. Ill, at 4. The losing party has the right to appeal the decision to the state district court. See Okla. Stat., tit. 70 § 6-103.12. Rankin asserts that by requiring him to pay for the hearing which the District is required to give him, the cost-sharing statute imposes an impermissible burden on his right to due process.

When a state statute penalizes the exercise of a constitutional right, the statute is subject to exacting judicial scrutiny. See, e.g., Meyer v. Grant, — U.S. —, 108 S.Ct. 1886, 1891, 100 L.Ed.2d 425 (1988) (strict scrutiny of statute burdening plaintiffs First Amendment rights); Smith v. Paulk, 705 F.2d 1279, 1284 (10th Cir.1983) (strict scrutiny of statute penalizing plaintiffs exercise of constitutional right to interstate travel). Accordingly, the statute at issue here, which imposes a substantial and open-ended financial burden on the right to procedural due process, must be justified by a compelling state interest and must be narrowly tailored so as to impose no greater a burden than necessary.³ Smith, 705 F.2d at 1284.

Defendants have suggested no specific state interest, compelling or otherwise, beyond a general reference to the fairness of requiring Rankin to bear his share of the cost of a hearing. This cost-recoupment argument ignores the fact that it is defendants’ affirmative obligation to furnish Rankin a due process hearing when they take action adverse to his liberty or property interests. Defendants have failed to demonstrate any compelling state interest in requiring Rankin to pay an unrestricted amount for that which they are constitutionally required to provide him. The trial judge likewise articulated no state interest upon which the statute could be upheld, basing his decision solely on his unsubstantiated belief that Rankin should have been able to afford the cost on his teacher’s salary. See Rec., vol. IV, at 15. Not only is Rankin’s actual ability to pay a matter of considerable dispute on the summary judgment record,⁴ it is irrelevant to determining whether the state has shown a compelling interest in requiring him to do so.

Our conclusion that the statute here cannot withstand strict scrutiny is supported by the decision in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). The Court held in Boddie that mandatory court fees and costs imposed a significant burden on the ability of those unable to pay to obtain a divorce. The Court further held that in view of the fundamental nature of the right to adjust the marital relationship and the state’s monopolization of the means of doing so, a state statute imposing a significant hurdle to that means must be justified by “a countervailing state interest of overriding significance.” Id. at 377, 91.S.Ct. at 785. The Court summarily rejected the state’s asserted interest in resource allocation or cost recoupment.⁵ Id. at 382, 91 S.Ct. at 788.

A tenured teacher’s right to procedural due process protection of his liberty and property rights in his employment is as constitutionally substantial as the right to divorce. Moreover, the state here has created the need for the process by not renewing Rankin’s contract. As in Boddie, the state provides no way to exercise the right other than in a manner penalizing those seeking to assert it.⁶ We therefore decline to afford cost recoupment any greater weight here than the Court did in Boddie.

We reject defendants’ attempt to bring this case within the holdings of Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) (per curiam), and Otasco v. United States (In re South), 689 F.2d 162 (10th Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946 (1983), because those cases are readily distinguishable. In Ortwein, the plaintiffs challenged a $25 filing fee required to obtain judicial review of agency decisions reducing their welfare benefits. The Court upheld the fee, pointing out that the right to increased welfare payments has far less constitutional significance than the interest burdened in Boddie, and that the free administrative hearing provided an alternative unburdened means of obtaining due process. See 410 U.S. at 659-60, 93 S.Ct. at 1174-75. Here, to the contrary, Rankin’s right to due process is of weightier constitutional significance and the state provides no alternative means to that burdened by substantial cost. In In re South, we upheld a $60 filing fee imposed on creditors who initiate adversary bankruptcy proceedings. In so doing, we relied on “Otasco’s ability to pay the fee, the nonfundamental nature of Otasco’s interest and the government’s legitimate interest in levying the fee.” 689 F.2d at 166. Those factors compel a different result here.

Unlike the filing fee cases discussed above, the chilling effect of the penalty here is magnified because a tenured teacher’s potential liability for costs is unrestricted and is the result in part of factors outside his control. The length of the hearing will depend upon the extent to which a school board offers evidence to support its decision. Moreover, even if a teacher prevails and decides to forego a transcript, the board has the right to request one for an appeal and to require the teacher to pay half the cost. For these reasons, we conclude that the statute challenged here is unconstitutional on its face because it imposes a significant and unjustified open-ended penalty on the exercise of a constitutional right.⁷

B.

Rankin also contends that due process requires a hearing •prior to the publication of stigmatizing charges in connection with an adverse employment decision. We disagree. When the termination of a public employee “is accompanied by public dissemination of the reasons for dismissal, and those reasons would stigmatize the employee’s reputation or foreclose future employment opportunities, due process requires that the employee be provided a hearing at which he may test the validity of the proffered grounds for dismissal.” Miller v. City of Mission, 705 F.2d 368, 373 (10th Cir.1983). Thus, one’s liberty interest is not implicated until the stigmatizing information is published. While the advantages of a prepublication hearing should be obvious to a prudent public employer who wishes to avoid liability for a liberty interest deprivation, a name-clearing hearing may be constitutionally adequate even if it occurs after publication. See, e.g., Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977); Board of Regents v. Roth, 408 U.S. 564, 573 & n. 12, 92 S.Ct. 2701, 2707 & n. 12, 33 L.Ed.2d 548 (1972); Lentsch v. Marshall, 741 F.2d 301, 303-04 (10th Cir.1984). We therefore reject Rankin’s argument that procedural due process requires a prepublication hearing.

II.

FIRST AMENDMENT

Rankin challenges the district court’s grant of a directed verdict for defendants on his First Amendment claim. In Saye v. St. Vrain Valley School Dist. RE-IJ, 785 F.2d 862 (10th Cir.1986), we addressed the standard of review applicable to a grant of a directed verdict when a plaintiff claims that an adverse employment decision violates her right to free speech. Although the protected status of the speech at issue is subject to our independent constitutional judgment, the sufficiency of the underlying historical facts upon which the constitutional claim is grounded is determined by the traditional standard of review. Id. at 865. Accordingly, we must view the historical facts most favorably to Rankin, giving him the benefit of all reasonable inferences to be drawn from the evidence. “A directed verdict is appropriate only when the facts and inferences, thus viewed, point so strongly in favor of one party that reasonable minds could not come to a different conclusion.” Id.

In granting defendants’ motion for directed verdict, the district court stated that there was “a total failure of proof in this case as to exactly, or even approximately, what was said, to whom, and under what conditions.” Rec., vol. I, doc. 103, at 2-3. Relying on Ewers v. Board of County Comm’rs., 802 F.2d 1242, 1246 (10th Cir.1986), rehearing granted on other grounds, 813 F.2d 1583 (10th Cir.1987), the court concluded that a directed verdict was proper because “the record before the Court does not contain any particular evidence of protected speech.” Rec., vol. I, doc. 103, at 3. In so doing the court adopted an overly restrictive standard unwarranted by Ewers and the law upon which Ewers is based.

In Ewers, we held that the trial court’s submission of the plaintiff’s First Amendment claim to the jury was erroneous on two interrelated grounds: the jury had no basis for a verdict when the court’s instruction failed to identify the protected speech allegedly motivating the adverse action, and the record itself contained no evidence of any such protected speech. Id. at 1246-47. Our reference in Ewers to the “necessity of presenting precise evidence of the alleged protected conduct, or speech with a degree of specificity,” id. at 1246, must therefore be read in the context of a total failure by either the judge or the plaintiff to identify the speech allegedly motivating the defendants’ conduct toward the plaintiff.

The record in this case stands in clear contrast to the Ewers record. Rankin alleged that the nonrenewal of his contract was in retaliation for his speaking out on the District’s method of disciplining its students. He presented evidence that following an incident in which a student was administered corporal punishment, public concern over school disciplinary practices ran high. Indeed, the evidence is undisputed that a school board meeting at which discipline was discussed began at 7:00 p.m. and ran until at least 3:00 a.m. The record contains testimony that Rankin spoke publicly on the issue of school discipline, both with parents and at school board meetings. In addition, there is evidence that Rankin was openly critical of the District for failing to have a written discipline policy and for failing to administer punishment evenhandedly.

The parties and the district court agreed that the issue of student discipline was a matter of public concern in the District during the relevant period. “There exist few questions within the area of education which are of more interest to the public than the one which raises the possibility of the physical mistreatment of students in the community schools.” Bowman v. Pulaski Cty. Special School Dist., 723 F.2d 640, 644 (8th Cir.1983). However, plaintiff must also present evidence that his speech, by its content, form and context, was itself of general interest rather than of purely personal concern. See Saye, 785 F.2d at 866; Wren v. Spurlock, 798 F.2d 1313, 1317-18 & n. 1 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987); Wilson v. City of Littleton, 732 F.2d 765, 768-69 (10th Cir.1984). Rankin met this burden with evidence that his speech was made publicly to parents and at school board meetings, that the speech occurred at a time of great general interest in the District’s discipline policy and in the context of a public debate on the issue, and that the content of his speech contributed to that debate. See Bowman, 723 F.2d at 644-45.

The dissenting opinion’s quotations and summarizations from the record support the above conclusion. It is not surprising that defendant board members who voted against Rankin “can’t recall” whether Rankin spoke out at board meetings on the clearly volatile subject of disciplining school children. As the dissent recognizes, however, Donald Doyle, a board member who voted in favor of Rankin, clearly testified that:

“Rankin had attended the board meetings and spoke on the problems of discipline (R., Yol. YII at p. 332); that the spanking of Theresa Johnson and others was a matter of concern in the community, id.; all the board members were concerned about Rankin speaking out on matters of discipline, id. at p. 342; Rankin’s appearances at board meetings and statements about discipline were some of the things that irritated Dr. Piguet, id. at 348; Dr. Piguet never actually related that Rankin spoke too much or too often at meetings or any place else, id. at p. 352; the town was factionalized over ‘the way stuff was handled at school,’ id; and that Rankin was not, to his knowledge, a member of any group or faction, id.”

Dissent, at 852. In addition, Rankin testified that he spoke publicly about the need for a written, evenly-applied discipline policy, and two parents likewise testified that Rankin came to board meetings and spoke out on discipline, rec., vol. VIII, at 479-83, 513. The dissent inexplicably fails to view this evidence most favorably to Rankin, concluding instead that “there is a total failure of proof in this case as to exactly, or even approximately, what (constitutionally protected speech) was said, to whom, and under what conditions.” Dissent, at 852. Yet, the record clearly reflects that the protected speech was Rankin’s outspoken articulation of his views on the manner and even-handedness of discipline in the public schools (“what”), and that these views were expressed to parents and to the school board at public meetings (“to whom” and “under what conditions”). It is apparent that the content, form, and context of Rankin’s speech was of public, not private, concern, and that Rankin’s speech was therefore constitutionally protected.⁸

The dissent also claims there was no evidence that Rankin’s speech on the subject was a motivating factor in his termination. However, “[t]he trial court’s entry of a directed verdict for the District was based upon Rankin’s failure to meet his initial burden, that of establishing protected speech.” Brief of Appellee, at 28. The trial court’s decision did not rest on any failure by Rankin to present evidence that his speech was a motivating factor in his termination, see rec., vol. I, doc. 103, at 3 (order granting defendants’ motion for directed verdict), and defendants do not raise this issue on appeal. In any event, the record as quoted by the dissent reflects that Rankin’s protected speech was a source of irritation to defendants, evidence which supports a reasonable inference that his speech was a motivating factor in their decision.

We conclude that the record here, viewed most favorably to Rankin, adequately identifies the constitutionally protected speech that Rankin claims was a motivating factor in the nonrenewal decision, and thus satisfies the concerns voiced in Ewers. His failure to offer evidence specifying the dates and the exact words of his speech is not therefore fatal to his cause of action. Accordingly, the district court erred in directing a verdict for defendants.⁹

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

1 . The immorality charge stems from an incident in the teachers lounge during which Rankin, in a heated argument with another teacher, swore either at the teacher or at a piece of office equipment.

2 . We are not here concerned with the nature of the process due Rankin. Lassiter v. Dept. of Social Serv., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), cited by defendants, thus sheds no light on our inquiry. That case considered the requirements of due process under the circumstances, not whether the due process right itself was improperly burdened.

3 . The dissent starts off on the wrong foot by assuming the majority opinion is employing an overbreadth analysis. We do not do so. The overbreadth doctrine is inapplicable here. This doctrine has been "carved out in the area of the First Amendment.” Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed. 2d 830 (1973). In order to give the First Amendment "breathing space," id., the Supreme Court "has altered its traditional rules of standing to permit — in the First Amendment area— 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Id. (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965)). In the instant case, Rankin has not challenged the Oklahoma statute under the First Amendment. Nor has he alleged that while his own conduct is subject to regulation, the statute could conceivably be applied unconstitutionally to others. He contends that the statute on its face impermissibly burdens his own constitutional right to procedural due process. As set forth in the text supra, we have followed the precedent of both the Supreme Court and this circuit in applying strict judicial scrutiny to this claim to determine whether the statute is facially invalid.

4 . In opposition to the motion for summary judgment, Rankin filed an affidavit stating that he could not afford the costs of the due process hearing. Rec., vol. I, doc. 25 at 3-4. Rankin had recently taken bankruptcy, and he had lost a child custody fight for which he owed attorneys fees. Rec., vol. IV, at 13-14. His attorney had advised him that a two or three-day hearing would cost him a thousand or fifteen hundred dollars. Id. at 14. Defendants argue that Rankin should have requested that the costs of the hearing be waived, if he could not afford to pay. Given the mandatory language of the statute (the parties “shall each be responsible for fifty percent (50%) of the expense"), we decline to hold Rankin responsible for failing to request a waiver.

5 . The dissent is correct in pointing out that the Court in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), held the statute there invalid as applied, while the statute here is challenged as invalid on its face. However, that distinction is irrelevant to our citation to Bod-die. The strict scrutiny test contains the same requirement when applied to either type of claim: the state must demonstrate a compelling state interest. See, e.g., Boddie, 401 U.S. at 377, 91 S.Ct. at 785 (state interest must be of "overriding significance"); Smith v. Paulk, 705 F.2d 1279, 1284 (10th Cir.1983) (statute must be justified by "compelling state interest”). Thus, the point we found significant in Boddie, that cost recoupment is not a compelling state interest, is not affected by the fact that Boddie involved a challenge to a statute as applied.

6 . In Winston v. City of New York, 759 F.2d 242 (2d Cir.1985), the court considered facts more closely analogous to those before us. There, teachers facing charges giving cause for dismissal could either resign or challenge the charges in a hearing. Teachers who resigned while under charges received pension benefits, while those dismissed for cause did not. A teacher’s exercise of the constitutional right to a hearing was thus chilled by the prospect that an adverse decision would result in the loss of pension benefits. The court balanced “the need for the challenged statute against its chilling effect on the exercise of the parties constitutional rights”, id. at 246, and held that the automatic penalty "places an unconstitutional burden on a teacher's right to a hearing," id. at 245. Although the court employed a slightly different analysis than we do here, it reached the same result.

7 .The dissent’s suggestion that we certify the due process question to the Oklahoma Supreme Court is manifestly inappropriate. Under our Tenth Circuit Rule 27.1, this court may certify to the state court "questions arising under the laws of that state which may control the outcome of a case pending in the federal court.” The dissent suggests that certification would allow the Oklahoma Supreme Court to decide the due process issue "either under the Oklahoma Constitution or the United States Constitution.” Dissent, at 845. That the validity of the statute under the federal constitution is a question of federal rather than state law is too obvious to require discussion. The validity of the statute under the state constitution, while undoubtedly a question of state law, is not a question in this case because Rankin has not challenged the statute as violative of the state constitution.

8 . In determining whether a public employee’s speech on a matter of public concern is constitutionally protected, a court must balance the employee’s interest in exercising his First Amendment rights and the employer’s interest in efficient government services. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Bowman v. Pulaski Cty. Special School Dist., 723 F.2d 640, 644-45 (8th Cir.1983). That balancing test is not at issue here. Defendants do not argue that the decision not to renew Rankin’s contract was based on a conclusion that his speech was too disruptive; rather, defendants argue that Rankin’s speech played no part in their decision. See Saye v. St. Vrain Valley School Dist., 785 F.2d 862, 867 (10th Cir.1986).

9 . Rankin also contends that the trial court erred in excluding evidence offered under Fed.R.Evid. 404(b) relevant to the First Amendment claim. In view of our holding that this case must be retried, and the possibility that this issue may not arise again in the same context, we decline to assess the merits of this claim.