United States Court of Appeals,
Fifth Circuit.
No. 94-30070
Summary Calendar.
Charles E. HILLIARD, Plaintiff-Appellant,
v.
Barbara FERGUSON, Superintendent of the Orleans Parish School
System, and Orleans Parish School Board, Defendants-Appellees.
Sept. 8, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before WISDOM, KING, and GARWOOD, Circuit Judges.
WISDOM, Circuit Judge:
The plaintiff in this case, Charles E. Hilliard, brought a
civil rights action against Barbara Ferguson, Superintendent of the
Orleans Parish School Board, and the Orleans Parish School Board
pursuant to 42 U.S.C. §§ 1983 and 1985(3). The district court
entered summary judgment for the defendants. We affirm that
decree.
I.
In early 1992, Hilliard applied for a job with Project
Independence, which was part of the Adult Education Program of the
Orleans Parish School System. He contends that James Raby, a
coordinator at Project Independence, told him that his application
would be denied because Board policy precluded consideration of
1
applicants with prior felony convictions.1 Hilliard acknowledges,
however, that Raby also told him that, irrespective of his prior
conviction, no available positions existed with the Adult Education
Program. Raby recommended that Hilliard apply directly to the
Orleans Parish School Board.
Hilliard took that advice and submitted his application to the
Board. In response, the Board sent him a brochure outlining Board
policies. The pamphlet, "Application Procedures for a Teaching
Position with the New Orleans Public Schools" stated that "Felony
convictions will automatically eliminate an applicant from
consideration." Later, the Board informed Hilliard that it hired
only certified applicants (Hilliard still needed to pass the
National Teacher's Exam).
While updating his application, Hilliard wrote to the Board's
personnel director. In his letter, Hilliard stated his belief that
the Board's automatic elimination of convicted felons from the
application process violated federal law. The personnel director
informed Hilliard that his accusation was premature because no
decision had yet been reached on Hilliard's application. Moreover,
the letter informed Hilliard that he would nonetheless be
interviewed and should, at that time, explain the details of his
conviction. After the interview, a decision as to Hilliard's
suitability would be reached.2
1
Hilliard had spent just shy of ten years in federal prison
for armed robbery.
2
Even if he were found to be a suitable candidate, other
obstacles still stood in Hilliard's way. The Board informed him,
2
II.
Hilliard filed suit in federal court alleging that Ferguson
and the Board violated his fourth and fourteenth amendment rights
by denying him employment on the basis of his status as a convicted
felon. He also alleged that the Board's policy on this matter
constituted a conspiracy to deprive members of his class (convicted
felons) of their rights to equal protection.
The defendants moved for summary judgment on both claims. As
to the former, the defendants argued that Board policy does not
exclude all felons from employment. The Board contends (and
Hilliard admitted) that the statement in the pamphlet that all
convicted felons are automatically eliminated was made in error.
Instead, the Board's actual and long-standing policy requires the
superintendent to review the facts and circumstances of each
applicant's felony conviction. Then, an individualized
determination as to the suitability of the candidate is made.
Factors considered include the crime, the position sought, and
evidence of rehabilitation.
On Hilliard's second claim, the defendants argued that they
were entitled to summary judgment because a corporation cannot
conspire with its own agents or employees. In this case, they
contend, the alleged conspiracy involved Ferguson, an employee or
agent of the board, and the Board itself. These are all factions
of the same legal entity: The School Board. The district court
for example, that any vacancies would first be filled by surplus
teachers and then by fully certified teachers.
3
granted the defendants' motion as to both claims.
III.
We review the district court's grant of summary judgment de
novo. We look to see first, whether a disputed issue of material
fact exists and, second, whether the moving party is entitled to
judgment as a matter of law.3 In this case, to defeat the Board's
motion for summary judgment, Hilliard must have set forth specific
facts showing the existence of a genuine issue for trial.4 In our
examination, we view the evidence in a light most favorable to
Hilliard, the non-moving party.5
IV.
Section 1983 provides a cause of action against "[e]very
person who, under color of any statute ... of any State ...
subjects, or causes to be subjected, any citizen ... to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws...." Moreover, section 1983 provides a cause
of action against local governmental units when the allegedly
improper action was taken pursuant to municipal policy or custom.6
Hilliard's § 1983 claim that the Board policy excluding from
consideration any convicted felon violates his fourth and fourteen
amendment rights is contradicted by his own testimony. He
3
Fed.R.Civ.P. 56(c).
4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106
S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986).
5
Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir.1992).
6
Monell v. Department of Social Services, 436 U.S. 658, 690,
98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978).
4
testified at his deposition that Raby never told him that his
felony conviction automatically disqualified him for a position.
In fact, Hilliard acknowledged at his deposition that the actual
Board policy requires a case-by-case examination into the
circumstances of each felon's conviction.7 In other words, subject
to special clearance from the Orleans Parish Department of
Personnel, a convicted felon may be eligible for employment. This
admission precludes a finding of any disputed issue of fact as to
the Board's official policy.
Having ascertained the Board's actual policy, we must
determine whether it runs afoul of the applicable legal standard.
It does not. Because the "right to hold public employment is not
a recognized fundamental right,"8 and convicted felons are not a
constitutionally protected suspect class,9 no heightened level of
7
Hilliard admitted that the official Board policy regarding
the employment of convicted felons provides, in part:
An applicant must be of good character. If he/she has
any prior record of arrest or conviction by any local,
state, or federal law enforcement agency for an offense
other than a minor traffic violation, the facts must be
reviewed by the Superintendent and his/her staff who
shall decide whether the applicant shall be declared
eligible for appointment.
Basic Employment Requirements of the Orleans Parish School
Board, adopted Aug. 4, 1969, revised, Nov. 26, 1973 and
March 22, 1976.
8
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976); Arceneaux v.
Treen, 671 F.2d 128, 133 (5th Cir.1982).
9
Baer v. City of Wauwatosa, 716 F.2d 1117, 1125 (7th
Cir.1983); Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st
Cir.1970).
5
scrutiny applies. Instead, we apply the rational basis test. We
examine the Board's policy to determine whether it bears "a
rational relationship to a legitimate end".10
The Board's policy easily satisfies that minimal threshold.
Looking a little deeper into a convicted felon's background and, in
particular, at the circumstances of the conviction is rationally
related to serve the legitimate interest in protecting the
schoolchildren within that teacher's proximity and care.11 We would
expect nothing less. The policy serves to ensure that the highest
degree possible of educational services will be provided to the
children of Orleans Parish within a safe and secure environment.
V.
Hilliard also alleges a conspiracy between Ferguson and the
Board to deprive him of his civil rights. To state a claim under
42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy
involving two or more persons; (2) for the purpose of depriving,
directly or indirectly, a person or class of persons of the equal
protection of the laws; and (3) an act in furtherance of the
conspiracy; (4) which causes injury to a person or property, or a
10
United States v. Galloway, 951 F.2d 64, 66 (5th Cir.1992).
11
Our holding is in keeping with other courts that have
examined this issue in other contexts. See, e.g., Upshaw, 435
F.2d at 1190-91 (convicted felon subsequently granted a full
pardon by the state of Massachusetts sought appointment to the
Boston Police Department after scoring well on his civil service
examination; court upheld denial of his application on the basis
of his criminal record); McGarvey v. District of Columbia, 468
F.Supp. 687, 689-90 (D.D.C.1979) (upholding examination mandated
by D.C.Code into the circumstances of a felony conviction prior
to public employment).
6
deprivation of any right or privilege of a citizen of the United
States.12 In so doing, the plaintiff must show that the conspiracy
was motivated by a class-based animus.13
The district court concluded that Hilliard had failed to show
that the conspiracy involved two or more persons. That conclusion
is sound.
It is a long-standing rule in this circuit that a "corporation
cannot conspire with itself any more than a private individual can,
and it is the general rule that the acts of the agent are the acts
of the corporation."14 In this case, we apply that rule to the
School Board.
In Hull v. Cuyahoga Valley Joint Vocational Sch. Dist.15, the
U.S. Court of Appeals for the Sixth Circuit did exactly that. In
Hull, the court applied our holding in Nelson to a § 1985(3) claim
alleging a similar conspiracy involving the Cuyahoga School Board.
The plaintiff in Hull alleged that the Cuyahoga School
Superintendent conspired with the executive director of the
district and a school administrator. All were employees of the
12
Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th
Cir.1987) (citing United Brotherhood of Carpenters and Joinders
of America, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S.Ct.
3352, 3355-57, 77 L.Ed.2d 1049 (1983)).
13
Burns-Toole v. Byrne, 11 F.3d 1270, 1276 (5th Cir.), cert.
denied, --- U.S. ----, 114 S.Ct. 2680, 129 L.Ed.2d 814 (1994).
14
Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911,
914 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97
L.Ed. 1356 (1953).
15
926 F.2d 505 (6th Cir.), cert. denied, --- U.S. ----, 111
S.Ct. 2917, 115 L.Ed.2d 1080 (1991).
7
School Board. The court held that, as all were members of the same
collective entity, the conspiracy did not involve two or more
people.16 Three district court cases in this Circuit have reached
the same conclusion.17 We do so as well.
We do not overlook the ways in which a school board is unique
and distinct from a corporation. A corporation maintains a unified
face in the eyes of the law. It is in that vein that we say that
a corporation is a person. A school board, however, is a
collection of individuals, some fill elected positions, some are
salaried workers. Still, that distinction is not dispositive. All
are employees of the school board. We follow the reasoning of the
other courts on this question and hold that a school board and its
employees constitute a single legal entity which is incapable of
conspiring with itself for the purposes of § 1985(3).
VI.
We are convinced that Hilliard did not receive an offer of
employment because no positions for which he was qualified and
certified were available. The plaintiff is resting on "mere
16
Id. at 509-10.
17
See Moody v. Jefferson Parish School Board, 803 F.Supp.
1158, 1166 (E.D.La.1992) (School Board, Principal, Vice-
Principal, and various teachers are all employed by the Jefferson
Parish School Board and, thus, are a single entity), aff'd 2 F.3d
604 (5th Cir.1993); Hankins v. Dallas Indep. Sch. Dist., 698
F.Supp. 1323, 1330 (N.D.Tex.1988) (high school and its officials
constitute a single entity); Chambliss v. Foote, 421 F.Supp. 12,
15 (E.D.La.1976) ("the university and its officials are
considered as constituting a single legal entity which cannot
conspire with itself"), aff'd, 562 F.2d 1015 (5th Cir.1977),
cert. denied, 439 U.S. 839, 99 S.Ct. 127, 58 L.Ed.2d 137 (1978).
8
allegations or denials"18 in his effort to show that something more
serious or sinister was involved. This he may not do. Judgment
for the defendants was proper.
AFFIRMED.
18
Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514.
9