joins dissenting:
And I honor the [person] who is willing to sink
Half his present repute for the freedom to think,
And, when he has thought, be his cause strong or weak,
Will risk t’ other half for the freedom to speak.1
I revisit Salado and, again, sound the schoolbell for the freedoms protected by the First Amendment. The plurality relegates a school district’s “educational leader and ... administrative manager” to an almost unspeakable role. Tex.Educ.Code § 13.351(a) (Vernon 1991). The constitutional evil of today’s decision is that it summarily strips the superintendent of a badge of citizenship — the right to participate publicly in an election. The jury found that the Salado school board would not have discharged the superintendent but for his public expression during the election. The plurality punishes Kinsey by forcing him to stand in the corner like a small schoolchild and silently observe while his neighbors, friends and colleagues debate the election issues and candidates amongst themselves and in the pages of the town newspaper.
The lesson this decision teaches is unmistakable. By permitting the school board to censor the superintendent’s speech which he delivered in reasoned and measured terms, the court enforces a constitutional curriculum of authoritarianism rather than autonomy, suppression rather than speech, and public facade rather than public discourse. I do not believe the Constitution prescribes so cramped a lesson plan. I respectfully dissent. I confine this dissenting opinion to a succinct consideration of the overarching issues posited in the plurality opinion of the en banc court and the special concurrence. Much has been said that need not be repeated. I stand on the propositions of law and the analysis of facts articulated in the panel majority opinion, and neither repeat nor redact that previous writing.
I.
In Kinsey v. Salado Indep. School Dist., 916 F.2d 273 (1990), the panel majority applied this circuit’s public employee speech and affiliation jurisprudence, as the en banc plurality does today. Although I utilize the same grading scale as the en banc plurality, I ultimately give Kinsey the highest grade in the class. The plurality, however, awards top honors to the school board. We quarrel not about the assigned task, but about the correct balancing test and answer dictated by the Constitution.
I note that our discourse on the designated subject contains certain similarities. Kinsey’s activities certainly “involved matters of great public concern.” Plurality op. at 995; see Kinsey, 916 F.2d at 278 (Kinsey’s statements concerned the public election of the school board, which became an issue “of great public importance” in Salado) (citation omitted). Since “a school superintendent and [the] school board stand in a close and confidential relationship,” a close working relationship between Kinsey .and the school board was essential to fulfilling the school board’s responsibilities to the public. Kinsey, 916 F.2d at 280; cf. Plurality op. at 995-96 (concluding that Kinsey “occupied a high-level policymaker position” and “a confidential relationship”).
The examination administered by the en banc plurality differs in several crucial respects from that proctored by the panel *1000majority. The en banc plurality emphasizes, and I recognize, that the First Amendment rights of a “confidential employee ... are more easily outweighed” by the interests of the government than the First Amendment rights of a wow-confidential or wow-policymaking employee. Plurality op. at 994-95 (citations omitted). From this proposition, however, the plurality crafts a balancing test that vulnerably slants toward the employer’s end of the spectrum. “Kinsey’s activities touched on matters of great public concern; but, because his position was so high-level and confidential, not much opposition to the new plurality was required in order to disrupt, and prevent, effective performance.” Id. at 996 (emphasis added). A confidential employee is doomed to fail a test weighted as heavily as that devised by the plurality.
This is the point where the panel majority’s preparation of the exam divurges from that of the en banc plurality. I agree that the correct query is “whether the particular speech [and other conduct] sufficiently disrupted the working relationship as to prevent effective performance” of the school board's responsibilities to the public. Plurality op. at 994 (citations omitted). The court quotes, but seemingly disregards, the language we deem critical to this balancing analysis: “[A]s the employee's] speech moves closer to core ‘public concerns,’ ” the law requires a “ ‘stronger showing of disruption’ ” by the government. Id. “Kinsey’s speech during the school board election was at the heart of First Amendment protection,” so the school district bore a heavy burden to prove that Kinsey’s activities so disrupted the working relationship as to prevent the efficient fulfillment of the school board’s duties to the public. Kinsey, 916 F.2d at 280.2
McBee instructs us to consider two factors in determining whether the sufficient level of disruption occurred in the particular context of this case. Neither of the factors decisively tips the balance toward the government, even if we begin, as the plurality does, with a test overly weighted toward the employer’s end of the spectrum. The “time, place and manner of the political activity” weighs in Kinsey’s favor. McBee v. Jim Hogg County, 730 F.2d 1009, 1017 (5th Cir.1984) (en banc). He merely conversed with other citizens concerning the upcoming school board elections and expressed his support for Berry in a letter published in the local newspaper. Kinsey, 916 F.2d at 278. In its analysis of the second factor, moreover, the plurality admits that the particular activities could not be considered sufficiently “ ‘hostile, abusive or insubordinate [so] as to disrupt significantly the continued operation of the office.’” Plurality op. at 996 (quoting McBee, 730 F.2d at 1017). Despite this explicit indication that it should shift the balance back toward the employee, the plurality concludes that “there can be no doubt that as a result of [Kinsey’s] activities, he could not have an effective relationship with the Board.” Id. (emphasis added); see Thomas v. Carpenter, 881 F.2d 828, 831 (9th Cir.1989) (“disruption must be ‘real, [and] not imagined’ ”) (citation omitted), cert. denied, 494 U.S. 1028, 110 S.Ct. 1475, 108 L.Ed.2d 612 (1990). The record, however, demands precisely the opposite deduction.
“[T]he School Board failed to prove that Kinsey’s public statements adversely affected his working relationship with the School Board.” 3 Kinsey, 916 F.2d at 280. *1001Kinsey never publicly disavowed the school board’s authority over him, but merely expressed in verbal and written form a reasoned preference for one school board candidate over another. Nor did Kinsey personally attack any of the new school board candidates. Nothing in the record supports the notion that Kinsey acted in an insubordinate manner toward the school board. In the aftermath of the election, Kinsey publicly pledged to support the school board. When the newly-elected school board issued specific directives, Kinsey attempted to comply with each directive. Nothing in the record shows noncompliance with any of the directives. Cf. Gonzalez, 774 F.2d at 1303 (holding that polite exchanges, lack of personal attacks, and offers to cooperate with employer showed that speech did not and was not likely to disrupt the government’s operations). Kinsey testified that the school board never informed him that he had done anything wrong in carrying out his duties as superintendent. Cf. McBee, 730 F.2d at 1015 (“no evidence that their previous political activity actually interfered with the effective performance of their jobs”).
The plurality posits a test that Kinsey could never pass. The plurality wholly relies on the one factor that weighs in the school board’s favor, the right of the government employer to loyal and efficient service, and essentially disregards the other factors that support Kinsey’s speech and associational rights.
The character of the expressions [cannot] be ignored: the Constitution has not repealed human nature; and it is one thing to work with a subordinate who has expressed a reasoned preference for another superior and quite another to have forced on one’s organization an individual who has blackguarded one’s honesty and ability up and down the county.
McBee, 730 F.2d at 1017. The test formulated by the plurality ascertains the high scorer not by balancing, but by assigning a grade predetermined by the perceived nature of the relationship between the employee and the publicly elected officials. Such a test seems unfaithful to the balancing approach prescribed by our jurisprudence. Id. at 1016 (“ ‘First Amendment issues ... not answerable by mechanical formulae’ ”) (citations omitted).
II.
The special concurrence advocates a test that bestows the highest score not by blind grading, but by favoritism. This bright-line test first asks if the employee’s “party affiliation is an appropriate requirement for the effective performance of the public office involved,” and, if the answer is “yes,” forces that employee to step over the line into a category of public employees dischargeable solely for “views related to the employee’s mission” — whether or not the employee expresses those views. This is the approach taken in the pure affiliation cases, but with a nod to expression flowing from the affiliation.
Almost ten years ago, this Court recognized the government’s need for the political loyalty of certain high-level employees, not just to ensure effectiveness, but to prevent the obstruction of the “implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Gonzalez, 712 F.2d at 148 (citing Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 2687, 49 L.Ed.2d 547 (1976)). Yet we adhered to the balancing approach, holding merely that this important governmental interest should be weighed in the balancing process. Id. at 148, 150. I do not read Gonzalez as limiting the mandate to balance these competing interests to cases involving employees that voice views “unrelated to their mission”; rather, the balancing focuses on whether the speech involved matters of “public concern,” a term that might include views both related and unrelated to the particular employee’s mission.
Gonzalez and McBee teach that we should weigh the employee’s speech and associational interests against the impact on the relationship between the employee and the elected officials and the relationship’s role in the elected officials’ discharge of their duties. McBee, 730 F.2d at 1016; Gonzalez, 712 F.2d at 150. The panel majority did so. Kinsey, 916 F.2d at 280. *1002Yes, Kinsey’s views were related to his [educational] mission.” But the views were of “great public concern.” And I emphasize that the record shows that Kinsey’s activity did not catalyze any dissention in his relationship with the school board. That is precisely why the panel majority, in the final analysis, could not “den[y] the electorate ... access to his unique point of view.” Id. at 281.
The categorical approach endorsed in the special concurrence is fueled by the fear that the balancing test provided by our jurisprudence will allow a high-level employee to “secure job tenure under the first amendment by publicly espousing his antagonizing philosophy or by engaging in other political activity in its service.” Special Cone, at 998. As noted by the panel majority, however, requires the fact-finder to determine whether the employer would have suspended or fired the employee regardless of the protected speech.” Kinsey, 916 F.2d at 281 n. 9, citing Mt. Healthy [City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ] (emphasis added). Elected officials confronted with an employee engaging in activities protected by the First Amendment can terminate the employee for an otherwise valid reason — but that is not what happened in Salado. The record supports the conclusion that the school board would not have terminated Kinsey but for the public expression of his political affiliation.
III.
Few things are as desirable in an election as free and open debate. Few people are likely to be as well-informed on matters of educational policy and school board composition as a school superintendent. Yet the effect of today’s ruling is to deny the public its right to hear the opinions of its superintendent on these issues. No concern for the efficient functioning of the school district requires that every drop of dissent be squeezed from its educational leaders.
The school term has drawn to a close, and I must bid farewell to Salado. I hope that this course marks not the end of a semester, but the beginning of a short recess. I yearn for the resolute return to a constitutional curriculum that will disavow today’s denial of Dr. Kinsey’s First Amendment rights and teach Salado’s children of the precious freedoms promised in the First Amendment.
. James Russell Lowell, A Fable for Critics (1848).
. Cf. Gonzalez v. Benavides, 774 F.2d 1295, 1302 (5th Cir.1985) (protecting speech that “directly address[ed] matters of substantial concern" because speech did not significantly harm relationship with publicly elected officials, although public employee occupied sensitive, high-level position), cert. denied, 475 U.S. 1140, 106 S.Ct. 1789, 90 L.Ed.2d 335 (1986); Gonzalez v. Benavides, 712 F.2d 142, 148 (5th Cir.1983) (weighing required because court did "not decide that all speech by persons in such relationships [which require for job security loyalty at the expense of unfettered speech] is unprotected”).
. I do not deny that the relationship between Kinsey and the school board deteriorated during the school board election and the subsequent decision to relieve Kinsey of his duties as superintendent. The record does not link the disruption to Kinsey’s affiliation or speech. Kinsey, 916 F.2d at 280 & n. 7.