dissenting:
Twice now the majority has assumed the role of ultimate fact finder.
On direct appeal from the district court’s directed verdict in favor of the School District and its judgment n.o.v. in favor of Superintendent Geil, the majority of this court reversed. See Ware v. Unified School Dist. No. 492, 881 F.2d 906 (10th Cir.1989). The majority did so even though the district court faithfully complied with the rigid standards of the rule it was aware of governing those motions, i.e., that the court cannot reweigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury.
In my dissent in Ware, supra, I agreed with the district court that, on the record made, the jurors could not have reasonably inferred that Ware’s First Amendment opposition to the bond issue was a substantial or motivating factor in either Geil’s recommendation for Ware’s termination or the Board’s 4-3 vote in support of her termination. The trial court concluded, and I agreed, that the overwhelming weight of the evidence established that the School Board terminated Ware for legitimate reasons which had no relationship to the bond issue.
The majority “found,” contrary to the district court, support for Ware’s contention that the School Board had delegated its authority to terminate Ware “[b]y the undisputed fact that Geil changed the locks to Ware’s office, thus locking her out, the day after he told her he was going to recommend her nonrenewal and five days before the school board meeting at which his recommendation was presented.” On the School Board’s petition for rehearing and based upon the Supreme Court opinion in Jett v. Dallas Indep. School Dist., — U.S. -, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), the majority now holds that the School Board did not delegate its final decision-making authority to Geil. Even so, the majority insists on re-affirming its holding-conclusion that the School District is nevertheless liable to Ware based upon flimsy evidence the majority has determined to be “sufficient” to show that the School Board “[ajcted with deliberate indifference to Ware’s First Amendment rights in approving Geil’s recommendation.” (Emphasis supplied). The majority thus ignores the trial court’s view of the undisputed evidence1 and, instead, relies on flimsy, lightweight evidence to establish “deliberate indifference” on the part of the School Board.
*821This court has recently held that to establish “[d]eliberate indifference there must be evidence demonstrating a higher degree of fault than negligence, or even gross negligence, but less than that required to demonstrate an intentional and malicious intent.” See Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1495-96 (10th Cir.1990). This is consistent with the Supreme Court’s opinion in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) which rejected the gross negligence standard in assessing municipal liability under § 1983 in favor of the higher “deliberate indifference” standard. The Court there held that in order to establish deliberate indifference the facts in the case must prove a degree of culpable conduct greater than that required to establish gross negligence. There is simply no evidence in this record supporting the imposition of School District liability under the “deliberate indifference” standard. Thus, the issue should never have been presented to the jury.
I would affirm the district court.
. "The undisputed evidence convincingly demonstrates that the bond issue played no part whatsoever in the Board’s decision to terminate Ware. The bond issue was not raised at the board meeting and the board members testified that the issue was not considered by them. *821Ware presented no testimony to the contrary.” (R., Vol. I, Doc. 64, p. 11).