Jackson v. Delta Special School District No. 2

___________

No. 95-2941
___________

Vickie Jackson, *
*
Appellant, *
*
v. *
*
Delta Special School District, *
No. 2; Ronald Smead, *
individually and in his official*
capacity as Superintendent of *
Delta Special School District *
No. 2; Hollis Mankin, *
individually and in his official* Appeal from the United States
capacity as a member of the * District Court for the
Board of Directors of Delta * Eastern District of Arkansas.
Special School District No. 2; *
Linda Lee, individually and in *
her official capacity as a *
member of the Board of Directors*
of Delta Special School District*
No. 2; Jerry Don Wilson, *
individually and in his official*
capacity as a member of the *
Board of Directors of Delta *
Special School District No. 2; *
Cecil Simpson, individually and *
in his official capacity as a *
member of the Board of Directors*
of Delta Special School District*
No. 2; Mary Scales, individually*
and in her official capacity as *
a member of the Board of *
Directors of Delta Special *
School District No. 2; Linda *
Wargo, individually and in her *
official capacity as a member of*
the Board of Directors of Delta *
Special School District No. 2, *
*
Appellees. *
 __________

Submitted: February 15, 1996

Filed: June 26, 1996
__________

Before WOLLMAN, HEANEY, and MAGILL, Circuit Judges.

___________

MAGILL, Circuit Judge.

Vickie Jackson, principal of Delta Special School District No. 2
(Delta), brought this action alleging that her termination by Delta was in
retaliation for her filing of a gender discrimination claim with the Equal
Employment Opportunity Commission (EEOC). After the jury found in her
favor, the district court granted Delta's renewed motion for judgment as
a matter of law. Jackson appeals both this ruling and the district court's
failure to order her reinstatement as school principal after the jury found
that Delta violated the Arkansas Teacher Fair Dismissal Act (ATFDA), Ark.
Code Ann. § 6-17-1501 (Michie 1993). We affirm in part and reverse in
part.

I.

Vickie Jackson was hired as the elementary school principal of Delta
for the 1991-92 school year. At the end of this school year, Delta's
Superintendent of Schools, Mr. Gunn, left the school district, and Jackson
applied for the position. Delta did not interview Jackson for this
position, and it hired Ronald Smead, who was to report for work on July 1,
1992. At the request of superintendent Gunn, Jackson was promoted to
principal of all grades from kindergarten through high school.

Jackson admitted that she was "upset" at not being interviewed for
the superintendent's position. In response, she carried on

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what was described by the district court as a "campaign of vilification and
the worst type of rumormongering and false witness against Ronald Smead."
Order Granting Judgment N.O.V. at 6 (June 23, 1995). "This vendetta,
consisting of the most derogatory charges imaginable," id., began shortly
before Smead arrived and continued throughout the ensuing school year.

As noted by the district court, "[t]he stories spread about Smead
were truly outrageous. The most serious was that he was a drug dealer."
Id. at 7. Evelyn Beatty, Jackson's secretary, testified that Jackson, on
more than one occasion, mentioned to Beatty and others that Smead was a
drug dealer: "She told me that she had an inside source at the state
police department and that he had told her that Mr. Smead was under
investigation for drug trafficking." Tr. at 308. Beverly Morales, Smead's
bookkeeper, confirmed that Jackson spread these rumors, noting that Jackson
"said that she had a source in the state police and, according to this
source, that Mr. Smead was dealing in drugs because cars would come up in
his yard and not stay very long and leave. And as to that, he was dealing
in drugs." Tr. at 296.

Another of Jackson's favorite rumors was that Smead was a womanizer.
Edward Burnett, an employee of the school district, testified that, even
before Smead took over as superintendent, Jackson was spreading such
rumors: "she told me that where he had formerly worked that she had talked
with a teacher or something and she had told her that he was a womanizer
and was having an affair." Tr. at 273.

Not content with calling Smead a drug dealer and a womanizer, Jackson
also spread rumors that Smead had a drinking problem and that "there was
a DWI at one time." Tr. at 42. Jackson also mentioned to Morales and
Beatty that Smead had financial problems in other districts with which he
had been associated.

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 Nowhere in the 191 pages of Jackson's trial testimony does she ever
deny spreading these rumors; at best she quibbles over the exact
terminology she used. As the district court noted,

She said she had never heard the word "womanizer" before, but
". . . [I] guess I could have said something . . ." [Tr. at
331]. She probably said "trouble with women" [Tr. at 338].
She admitted making derogatory remarks to Ms. Morales and Ms.
Beatty [Tr. at 333]. She admitted telling the women Mr. Smead
had "some problems with drugs over at Kingsland" but denied
using the term "drug dealer" [Tr.at 333-34].

Order at 9. Jackson also admitted to telling her co-employees that Smead
had a drinking problem that resulted in a D.W.I. charge. Tr. at 42, 170.
Finally, when Jackson was asked during cross- examination if she had ever
mentioned to her co-employees "[a]ny of the financial trouble we've talked
about, drug dealing or whatever terms you used and trouble with women,"
Jackson responded, "Yes, sir, I mentioned them. I certainly did, yes."
Tr. at 346.

Jackson's motive for spreading these rumors is clear: she was
distraught at not receiving the superintendent position and so she
"embarked on a vendetta to make life miserable for Smead." Order at 2.
Morales testified that Jackson stated that the school district "hadn't
treated her right" in not interviewing her for the superintendent's
position and that "she [Jackson] could make everyone miserable," Tr. at
283, and that "the board had hired Mr. Smead knowing his background and
that she [Jackson] could make a call to the newspapers and make it hard for
everyone." Tr. at 287. On this, Jackson certainly kept her word.

Jackson succeeded in creating an intolerable atmosphere of tension
at Delta. Beatty noted that Jackson's continued statements caused a
problem at the school and affected Beatty's productivity. Beatty
eventually relayed Jackson's comments to Smead because the comments "became
such a problem" and "caused so much tension" and

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because Jackson's co-employees "couldn't work with it." Tr. at 306.
Morales confronted Jackson about the negative comments. According to
Morales,

[s]he [Jackson] would just come up to me or to anyone and, you
know, just start talking, just start saying things about Mr.
Smead. . . . And at that time I had, you know, was real busy in
my job and I'd had my fill of it. I got tired of listening to
her. I mean, I didn't ask to hear it. I told her finally I
was just tired of her shit.

. . . .

But I was mad; I was upset and I just, that's what I said. I
said I was tired of every breath that I heard from her being
negative about Mr. Smead. I said I was in the middle . . . and
I was just sick of hearing about it.

Tr. at 284. When asked if she considered Jackson's conduct to be
professional, Morales responded "no."

On January 4, 1993, Smead relieved Jackson of her disciplinary duties
regarding high school students and bus students. Jackson complained to the
school board that this action constituted gender discrimination. Although
there was evidence that discipline at the high school had suffered while
Jackson was in charge, the school board reinstated Jackson as chief
disciplinarian at its February 1993 meeting. The board denied that Smead
had discriminated against Jackson.

On February 26, 1994, Jackson filed an EEOC charge claiming that
Smead's action constituted gender discrimination. The EEOC chose not to
accept the case, instead issuing Jackson a right to sue letter. Jackson
chose not to file a lawsuit on this allegation of discrimination.

In early March, Smead decided to recommend to the Delta school board
that it terminate Jackson. Smead cited thirteen instances of

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unprofessional conduct and fifteen instances of inefficiency and
insubordination by Jackson during the previous year as grounds for the
proposed dismissal.1

Before Jackson was terminated, she was afforded an opportunity to
present her case to the school board. She was notified on April 27, 1993,
that a hearing before the school board had been set for 8 p.m. on April 30,
1993. However, Jackson's attorney advised her that under the ATFDA only
she could order a hearing, and thus she was under no obligation to attend
the meeting set up by the school board. Jackson chose to not attend the
meeting, at which the school board formally discharged her. At this
meeting, the school board voted to pay Jackson her salary until the end of
the contract year.

On May 3, 1993, Jackson's attorney sent a letter to the president of
the Delta school board requesting an open hearing, but Jackson received no
response to the letter.

On June 11, 1993, Jackson filed a second charge of discrimination
with the EEOC, claiming that her termination was in retaliation for her
filing of the February 1993 discrimination claim with the EEOC. Jackson
received a right to sue letter from the EEOC. She brought this suit in
federal district court, alleging that Delta, Smead, and the school board
(1) violated her

1
During trial, Jackson admitted that several incidents relied
upon by Smead in recommending her termination did in fact occur.
Jackson testified that she could not remember some of the other
incidents, and as to a few, she testified that they did not occur.

Jackson's filing of the EEOC complaint was not listed as one
of the reasons for termination. When asked at trial if Jackson's
filing of the complaint was a factor in the termination, Smead
twice stated that it was "not the sole reason"; however, in
response to further questions, Smead stated that the filing of the
complaint was not a factor in the termination.

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procedural due process rights by terminating her and (2) retaliated against
her for filing the gender discrimination claim with the EEOC in February
of 1993. In a supplemental state law claim brought pursuant to 28 U.S.C.
§ 1367 (1994), Jackson alleged that Delta violated the ATFDA by not
granting her a hearing after she requested it, thereby requiring her
reinstatement.

The jury returned a verdict for Jackson. The jury found that: (1)
Jackson was denied procedural due process; (2) Jackson would have been
terminated even if she had received due process;2 (3) Jackson's filing of
the February 1993 EEOC complaint was a motivating factor in the defendant's
decision to discharge her; (4) if Jackson had not filed the February 1993
EEOC complaint, she would not have been terminated; and (5) defendants
failed to comply with the ATFDA. The jury awarded Jackson $185,000 in
3
compensatory damages.

The defendants filed a renewed motion for judgment as a matter of law
or, in the alternative, for a new trial. The court granted judgment as a
matter of law on the retaliation claim, holding that the jury's verdict was
unsupported by the record. The district court noted that

[i]n view of plaintiff's disloyalty to him [Smead], the
slanderous statements made to his subordinates - that he was a
drug dealer, problem drinker, womanizer and involved in
financial difficulties, the superintendent had no choice but to
ask the board to fire her. He would have been a fool to do
otherwise.

2
Because Jackson would have been terminated even had she
received due process, the court awarded nominal damages of $1 only
on this claim. See Brewer v. Chauvin, 938 F.2d 860, 862-64 (8th
Cir. 1991) (en banc). This damages award has not been appealed.
3
At oral argument, counsel for Jackson broke down the $185,000
award as follows: $100,000 as compensatory damages for the
retaliatory discharge, and $85,000 as compensatory damages for the
ATFDA violation.

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Order at 10. The court also granted, in the alternative, a new trial on
this claim.

The district court agreed with the jury that the ATFDA had been
violated, but, concluding that Jackson would have been terminated anyway,
it awarded nominal damages of $1 and refused to order Jackson's
reinstatement.

II.

In reviewing the district court's grant of judgment as a matter of
law, we apply the same standard as the district court. This standard
requires that we (1) resolve direct factual conflicts in favor of the
nonmovant; (2) assume as true all facts supporting the nonmovant which the
evidence tended to prove; (3) give the nonmovant the benefit of all
reasonable inferences; and (4) deny the motion if the evidence so viewed
would allow reasonable jurors to differ as to the conclusions to be drawn.
Dace v. ACF Indus., Inc., 722 F.2d 374, 375 (8th Cir. 1983).

In considering retaliatory discharge claims, we use the three-stage
order of proof and presumptions governing discrimination cases in general.
Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993).
Plaintiff must initially establish a prima facie case of retaliation by
showing participation in a protected activity, subsequent adverse action
by the employer, and a causal connection between the two. Kobrin v.
University of Minnesota, 34 F.3d 698, 704 (8th Cir. 1994). Once a prima
facie showing is made, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions. Id.

If the employer meets that burden, the presumption of retaliation
raised by the prima facie showing disappears and we evaluate only whether
Jackson presented evidence capable of proving that proffered reasons for
termination were a pretext for

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retaliation. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th
Cir. 1995). She can do this directly, "by persuading the court that a
discriminatory [or retaliatory] reason more likely motivated the employer,"
Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981), or
indirectly, "by showing that the employer's proffered explanation is
unworthy of credence," id. Such indirect evidence, in conjunction with the
prima facie case, merely permits, but does not require, the jury to
conclude that Jackson has been the victim of unlawful retaliation. See St.
Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2749 (1993); Hutson, 63 F.3d
at 777.

The parties concede that Jackson made a prima facie showing that she
was discharged in retaliation for filing the February 1993 EEOC complaint.
The parties further agree that Delta offered a legitimate, nonretaliatory
reason for the termination. Thus, we must examine only whether Jackson has
made the third-stage showing that the proffered reasons for termination
were a pretext for retaliation. We agree with the district court that
Jackson has not met this burden.

There was overwhelming evidence adduced at trial that the main reason
for Jackson's termination was her insubordination, her inefficiency, and
the divisive atmosphere created by her actions at Delta, leading to the
decreased productivity of her co-employees.

First, Jackson herself admitted that several of the incidents
outlined in Smead's termination letter of April 9 did in fact occur.
Second, Jackson admitted to spreading truly outrageous rumors about Smead,
including that he was involved in drugs, was a womanizer, had a drinking
problem, had financial problems, and was often absent from the school
district. Her co-employees corroborated this testimony.

Jackson's comments were terribly disruptive at Delta. They

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caused extreme tension at the school, and her co-employees, tired of
listening to Jackson's vitriol, could not perform their duties. We agree
with the district court that the overwhelming evidence adduced at trial
demonstrates that Jackson was "a terribly disruptive influence at the
school; as she threatened to do, she made life miserable for the employees
with whom she had contact." Order at 13. "It would have been impossible
for Mr. Smead to have carried on his duties when his principle subordinate
spread the most vicious rumors behind his back to other employees of the
district." Id.

Against the great weight of this evidence, Jackson persists in
contending that she was discharged in retaliation for filing the February
1993 EEOC complaint. She points to three things evidencing that her
discharge was retaliatory: (1) the timing of the termination; (2) a comment
made by Smead, retracted moments later, that Jackson's filing of the EEOC
complaint was "not the sole reason" for her termination; and (3) Delta's
failure to comply with the ATFDA's remediation provision, Ark. Code Ann.
§ 6-17-1504, which requires that Jackson be made aware, in writing, that
problems with her performance existed that could lead to her termination.

First, we are not troubled by the timing--Jackson had been spreading
the slanderous rumors about Smead ever since Smead first became
superintendent, and Smead had been detailing the instances of
insubordination and incompetence long before Jackson ever filed the EEOC
complaint. Second, the statement by Smead is ambiguous at best, and its
importance is far overshadowed by the damaging admissions made by Jackson
that she did actually engage in conduct justifying her termination.
Finally, the failure to remediate, which in some situations may be evidence
that a school district is out to "get" a teacher, is likewise so far
overshadowed by Jackson's admissions as to hardly offer any evidence of
pretext at all.

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 When the events surrounding her filing of the February 1993 EEOC
complaint are viewed as a whole, it is clear that the school board did not
harbor any retaliatory animus when it dismissed Jackson. When Jackson was
removed from the post of chief disciplinarian, she first complained to the
school board. What was the school board's response? As cogently analyzed
by the district court,

[t]he school board, based upon her complaint to it, restored
her as the chief disciplinarian, overruling Mr. Smead. . . . At
a meeting of the board in February, in response to the
plaintiff's complaint of gender discrimination, the board
restored her as chief disciplinarian. Therefore, the basis for
the EEOC charge had disappeared. She denied any intention of
filing a lawsuit based upon this charge. "No sir. That was
just documentation. Something to show that something had taken
place, that's all." One question immediately suggests itself
as to the retaliation complaint. Why would the board retaliate
by firing her for making a complaint to the EEOC when they had
agreed with her in February when she filed the same complaint
with the board? When she filed the retaliation complaint four
months later in June, the board had restored her as chief
disciplinarian several months before, back in February. . . .
The board gave her satisfaction on her complaint. "I had no
intention of filing a lawsuit." The EEOC found no basis for
her February 23, 1993 complaint. She did not pursue a lawsuit
on this charge which she had every legal right to do. Yet,
four months after the February charge was filed, she claimed
retaliation. This allegation is patently pretextual. The
jury's affirmative answer to Interrogatory No. 3 is utterly
without any basis in the evidence.

Order at 11-12 (emphasis added) (citations omitted).

We agree that the allegation of retaliatory discharge is "patently
pretextual." Delta offered overwhelming evidence, including Jackson's own
admissions that she spread slanderous, unsubstantiated rumors about
superintendent Smead, that Jackson's discharge was not retaliatory. Given
Jackson's comments, "the superintendent had no choice but to ask the board
to fire her. He

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would have been a fool to do otherwise." Id. at 10. Jackson's claim of
retaliatory discharge fails.

III.

Jackson next claims that the district court erred in failing to
reinstate her and award her back pay after the jury found that her
dismissal violated the ATFDA. Specifically, she notes that Delta's failure
to comply with the ATFDA voids her dismissal and requires her
4
reinstatement.

The jury found that Delta failed to strictly comply with the ATFDA,
and the district court did not disturb this conclusion upon Delta's motion
for a renewed judgment as a matter of law. We agree with this finding.
It is undisputed that Jackson requested a hearing on May 3, 1993, within
the thirty-day window provided by the ATFDA. Delta did not offer Jackson
a hearing as required. This violates the ATFDA and voids her termination.

Delta responds that it was not required to provide Jackson with a
hearing after her request because it had earlier held a meeting on April
30, 1993, to discuss her termination. However, this hearing did not
satisfy the requirements of the ATFDA. Even assuming that school districts
are empowered under the statute to sua sponte hold hearings regarding
terminations, the statute

4
Under the ATFDA, a teacher may be discharged for any reason
that is not arbitrary, capricious, or discriminatory. Ark. Code
Ann. § 6-17-1503. However, before being discharged, the teacher
must receive written notice of the superintendent's termination
recommendation, including the grounds for the recommendation of
termination. Ark. Code Ann. § 6-17-1507. Within thirty days of
receiving such notice, the teacher may file a written request for
a hearing before the school board. Ark. Code Ann. § 6-17-1509.
The hearing shall take place not less than five days nor more than
ten days after the written request has been served on the school
board. Id. Failure to strictly comply with these notice and
hearing provisions shall void the termination. Ark. Code Ann. § 6-
17-1503.

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mandates that the hearing be held between five days and ten days after
notice of the meeting is given. In this case, Jackson received notice of
the April 30 meeting on April 27, an insufficient amount of time under the
statute. See Lester v. Mount Vernon-Enola Sch., 917 S.W.2d 540, 542 (Ark.
1996) (termination void because hearing held only four days after notice).5

At issue then is the relief to which Jackson is entitled. We must
first decide whether Jackson is entitled to reinstatement, with a
concomitant award of back pay. If Jackson is not entitled to
reinstatement, we must decide if she is nevertheless entitled to any back
pay due to the violation of the ATFDA.

We agree with the district court that reinstatement is not
appropriate in this case. The goal of the ATFDA is to ensure that a
teacher receives a fair hearing before she is terminated. The trial in
this case met that goal--Jackson was granted an adversary hearing where she
was able to present witnesses on her behalf and cross-examine Delta's
witnesses.

At the conclusion of trial, the judge determined that Delta
demonstrated, as a matter of law, that Jackson's termination was justified.
As noted by the district court,

[t]o reinstate this woman would be unthinkable, and her request
for such remedy is hereby denied. She was a terribly
disruptive influence at the school; as she threatened to do,
she made life miserable for the employees with whom she had
contact.

Order at 13. Because a hearing before the school board can offer Jackson
no greater opportunity to be heard than did the judicial forum, Jackson's
termination is valid and we will not order

5
Delta also violated Ark. Code Ann. § 6-17-1504, because
Jackson was not made aware, in writing, that problems with her
performance existed that could lead to her termination.

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reinstatement.

A more difficult issue is that of damages where reinstatement is not
ordered. As noted above, Delta's failure to grant a hearing when requested
by Jackson voids her termination and requires that she be rehired for the
1993-94 school year at the same salary and on the same terms as the
previous year. See Western Grove Sch. Dist. v. Terry, 885 S.W.2d 300, 302-
03 (Ark. 1994). Thus, at a minimum, she must receive back pay for this
year. Id.

However, Arkansas law offers no clear answer as to whether a teacher
terminated in violation of the ATFDA is entitled to back pay for years
subsequent to the year immediately succeeding her termination. In Marion
City Rural School District No. 1 v. Rastle, 576 S.W.2d 502 (Ark. 1979), a
pre-ATFDA decision, a school district failed to give a teacher proper
notice of termination before the 1975-76 and 1976-77 school years.
However, the court held that the teacher was entitled to only one year of
back pay because the notice violation went only to the year immediately
following termination. Id. at 504.

On the other hand, in Western Grove School District v. Strain, 707
S.W.2d 306 (Ark. 1986), a teacher terminated without cause under the ATFDA
was entitled to back pay from termination through reinstatement. Id. at
308. The court noted that, for a school teacher removed from her job
without cause in violation of the ATFDA, "her contract was in abeyance
during the pendency of the lawsuit [challenging the dismissal]." Id. The
teacher was reinstated at the end of trial, entitling her to be
"compensated for the period she was unemployed due to the actions of the
school district." Id. The underlying rationale was that due to her
reinstatement, the teacher should be considered an employee of the school
district during the pendency of the lawsuit. As an employee during this
period, she was entitled to compensation.

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 We believe that the best interpretation of Strain is that it applies
only where reinstatement is ordered.6 We conclude, then, that where the
termination is for cause, and reinstatement is not ordered, so that the
violation of the ATFDA is procedural and not substantive, Rastle, and not
Strain, guides our decision.

In the present case, Jackson was not reinstated at the conclusion of
trial because her dismissal was with (good) cause. Thus, unlike in Strain,
we do not consider Jackson to have been an employee at Delta up until the
time of the lawsuit. Under Rastle, the effect of the procedural violation
of the ATFDA in April 1993 goes to the succeeding school year only. Thus,
Jackson's employment contract should be extended for only one year, and she
is entitled to back pay only for this period.7

We note that the result reached in part III of this opinion is an
unfortunate consequence of the ATFDA. Although we feel that any award to
Jackson in this case is undeserved, we are compelled by Arkansas law to
award one year's back pay to Jackson.

6
In Strain, the award of two years' back pay was not
predicated solely upon a violation of the ATFDA, but rather on the
termination being without cause and on a subsequent reinstatement
of the teacher. See Strain, 707 S.W.2d at 308; see also Leola Sch.
Dist. v. McMahan, 712 S.W.2d 903, 908 (Ark. 1986) (noting that
result in Strain predicated on reinstatement of teacher).
7
The dissent states that reinstatement plus three years' back
pay is the only available remedy for the school board's violation
of the ATFDA. We disagree. Under Arkansas law, courts must give
statutes a reasonable construction, not an absurd one. See Federal
Express Corp. v. Skelton, 578 S.W.2d 1, 9 (Ark. banc 1979) (quoting
Hervey v. Southern Wood Box, Inc., 483 S.W.2d 65, 69 (1972)).
Although reinstatement may not be denied solely because it would
cause "hard feelings," see Leola Sch. Dist. v. McMahan, 712 S.W.2d
903, 908 (Ark. 1986), where reinstatement would be not only
disruptive but also destructive of the learning environment, we
would not interpret the statute as requiring that remedy.

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 IV.

We agree with the district court that Jackson's discharge from Delta
was not in retaliation for her filing the EEOC complaint. We further agree
that reinstatement is not appropriate in this case, although we do conclude
that Jackson is entitled to one year of back pay to remedy the violation
of the ATFDA. Accordingly, the judgment of the district court is affirmed
in part and reversed in part, and the case is remanded for a determination
of the value of the salary and other benefits Jackson would have received
for the 1993-94 school year.8

HEANEY, Circuit Judge, concurring in part and dissenting in part.

With respect to whether Jackson was entitled to reinstatement, as
discussed in Part III of the majority opinion, I dissent. Arkansas law on
this point is quite clear: a termination that does not strictly comply
with the procedural requirements of the Teacher Fair Dismissal Act of 1983,
Ark. Code Ann. §§ 6-17-1501-6-17-1510 (Michie 1993) (Fair Dismissal Act),
is void. As such, reinstatement and back pay are the appropriate remedies.
I think it worth reminding that this issue is before this court pursuant
to our supplemental jurisdiction, 28 U.S.C. § 1367 (1994). Accordingly,
we must interpret this question of state law as would Arkansas state
courts. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).

Following Arkansas state court decisions holding that substantial
compliance with notice requirements was sufficient, see, e.g., Murray v.
Altheimer-Sherrill Pub. Sch., 743 S.W.2d 789

8
Delta moved to strike Jackson's Reply Brief Addendum, on the
grounds that the material was not in the district court record and
that it dealt with issues not previously raised on appeal. We deny
this motion, for the material was before the district judge and is
relevant to issues raised by Delta in its brief.

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(Ark. 1988), the Arkansas legislature amended the Fair Dismissal Act as
follows:

A nonrenewal, termination, suspension, or other disciplinary
action by a school district shall be void unless the school
district strictly complies with all provisions of this
subchapter and the school district's applicable personnel
policies.

1989 Ark. Acts 625, §1 (amending Ark. Code Ann. § 6-17-1503). As the
majority concedes, the School District did not comply with requirements
imposed by the Fair Dismissal Act. The dismissal, therefore, is void. If
Jackson's termination is void, she has not been terminated and should be
reinstated.

The majority rejects reinstatement as the appropriate remedy. It
argues that the "goal of the [Fair Dismissal Act] is to ensure that a
teacher receives a fair hearing before she is terminated. The trial in
this case met that goal . . . ." Slip op. at 13. In effect, the majority
holds that a trial is a sufficient substitute for the statutorily-
established dismissal procedures. This assertion is contradicted by the
clear statutory language employed by the Fair Dismissal Act.

Moreover, the majority's difficulty with the question of back pay
belies the untenability of its position regarding reinstatement. After
rejecting reinstatement, the majority concludes that under Marion City
Rural Sch. Dist. No. 1 v. Rastle, 576 S.W.2d 502 (Ark. 1979), the effect
of the procedural violation of the Fair Dismissal Act in April 1993 goes
only to the succeeding school year. Slip op. at 15. The flaw with this
assertion is that Rastle, the only authority cited by the majority for its
holding, did not interpret the Fair Dismissal Act, which was enacted after
that decision. In subsequent cases in which school districts have argued
that damages should be limited to the one year following a Fair Dismissal
Act violation, the Arkansas Supreme Court has been

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perfectly clear on the issue of Rastle's continued viability: "Reliance
on Rastle is misplaced, since the statutory law governing teaching
contracts had been changed by the legislature . . . ." Western Grove Sch.
Dist. v. Strain, 707 S.W.2d 306, 308 (Ark. 1986). The majority, however,
ignores this instruction and the fact that Rastle did not interpret the
relevant statute. Instead, it argues that the violation in this case,
which consists of a failure to comply with the Fair Dismissal Act's
procedural requirements, is more analogous to Rastle than to Strain because
Strain involved a termination that violated the Act's "with cause"
requirement. This distinction simply does not comport with the statutory
language, which flatly states that a termination shall be void "unless the
school district complies with all provisions of this subchapter." Ark.
Code Ann. § 6-17-1503 (emphasis added). Even if the statutory language
were ambiguous, the decisions of Arkansas courts interpreting it are not.
The Arkansas Supreme Court has held that reinstatement and back pay are
appropriate remedies for notice violations of the Fair Dismissal Act. See
Western Grove Sch. Dist. v. Terry, 885 S.W.2d 300, 300 (Ark. 1994). We are
bound to do so as well.

The majority suggests that a reasonable construction of the statute
would not require reinstatement where its impact would be "destructive of
the learning environment." Slip op. at 15 n.7. I share the majority's
concern for the learning environment, but the potential disruption
represented by reinstating the plaintiff in this case is no different than
any other Fair Dismissal Act case, which by definition involves a
disciplinary action. The Arkansas Supreme Court has explicitly rejected
this argument as a basis upon which reinstatement can be denied:

[T]he appellant maintains that a court should not grant
reinstatement unless the return of the given teacher to a
school's environment will not cause unnecessary disruption
because of ensuing feelings. The appellant has cited no
authority for this proposition.

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 Any time a school board is forced to reinstate a teacher it has
dismissed, hard feelings may result. To refuse reinstatement
on that basis would allow the board to succeed in its [illegal
action].

Leola Sch. Dist. v. McMahan, 712 S.W.2d 903, 908 (Ark. 1986). The
majority's attempt to distinguish this same case from the potential
disruption here is simply not supported. Like the school board in Leola,
the majority can cite no authority for its "reasonable interpretation."

One wonders whether the majority's interpretation of Arkansas law is
not driven by its conclusion that "any award to Jackson in this case is
undeserved . . . ." Slip op. at 15. It must be recognized, however, that
the school district's own conduct has raised the stakes of this suit:
rather than acknowledging its failure to comply with a simple procedure and
then correcting that error, it chose to pursue a course of litigation. As
a result, the period of back pay at issue is three years, instead of just
one. Although I cannot defend Jackson's conduct, the Arkansas General
Assembly has gone to considerable efforts to balance the competing
interests of school district hiring flexibility and employee protection.
Few protections have been afforded school district employees, but those
that have been provided are to be strictly respected. However unjust the
result of that balance may seem in this instance, we must recognize that
there are larger issues at stake than the present case. I am confident
that were this court to award reinstatement, in the future, school
districts would go to greater lengths to comply with state law. Clearly,
this was the intent of the legislature. The decision of the majority today
not only ignores unambiguous statutory language and judicial
interpretation, its strained effort to navigate away from the clearly-
marked channels of state law frustrates the very purpose of the Arkansas
legislature's 1989 amendment.

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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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